ASYLUM: LAW YOU CAN USE: All-Star Professor Michele Pistone Of Villanova Law Writes & Directs “Must See TV” — “Best Practices in Representing Asylum Seekers”

Go on over to Dan Kowalski’s LexisNexis Immigration Community here for all the links to the 19-part series on You Tube made possible by the American Law Institute with an introduction by none other than Justice Sandra Day O’Connor:

https://www.lexisnexis.com/legalnewsroom/immigration/b/immigration-law-blog/archive/2017/11/16/video-series-best-practices-in-representing-asylum-seekers.aspx?Redirected=true

Thanks, Michele, for all you do for the cause of Due Process for migrants and better Immigration Court practices!

PWS

11-17-17

 

HON. JEFFREY CHASE COMMENTS ON THE BIA’S RECENTLY WITHDRAWN AMICUS INVITATION ON THE ONE-YEAR BAR!

https://www.jeffreyschase.com/blog/2017/11/16/the-bias-withdrawn-amicus-invitation

Jeffrey writes:

The BIA’s Withdrawn Amicus Invitation

The BIA recently withdrew as moot its invitation for amicus briefs on the following issue: whether an applicant who filed a late application for asylum based on two separate grounds (i.e. religion and coercive population control), and who demonstrated changed conditions as to the religion-based claim to allow for late filing, could have their asylum claim considered as to both grounds.  My question is why the Board felt the need to invite briefing on this issue in the first place?

In the 1990s, several high profile events caused Congress to address the issue of asylum reform.  An early version of a House bill addressing the subject would have required an asylum application to be filed within 30 days of arrival in this country.  The bill’s sponsors believed that asylum applications filed by individuals who had been in this country several years lacked legitimacy, and were being filed as a dilatory tactic in removal proceedings, or affirmatively simply as a way to obtain employment authorization.   I remember explaining to members of Congress (including one of the three sponsors of the bill) that it took potential asylum seekers well in excess of 30 days just to get an initial appointment with pro bono groups such as the one I volunteered with at the time.  If the organization accepted the case, it would take additional time to place it with a law firm (which would usually have to first determine that representation was free of any conflicts of interest).  That was all before the pro bono attorney had even met with the client for the first time.  Furthermore, the filing deadline was being considered in conjunction with a sped-up asylum adjudication process under which asylum officers would issue a final decision on asylum claims within 60 days of receipt.  This meant that asylum applicants really needed to file their documentation along with the application.  But for a refugee forced to suddenly flee their country, compiling supporting documentation from overseas can take time.  Advocacy efforts succeeded in persuading Congress to extend the original 30-day filing deadline to the present one year.

However, an additional concern remained.  When meeting with members of Congress on this issue in the 1990s, I raised the following hypothetical: what if a lawful F-1 student receives a call from home during their third year of college, informing the student that their brother was arrested, the police were asking about the student’s own whereabouts, and warning the student to not return home.  The student in this scenario is a legitimate refugee, but the one-year deadline has long passed.  Congress therefore created an exception to the one-year deadline for changed conditions that give rise to a well-founded fear of persecution.  And in the case before the BIA, the respondent satisfied this exception by establishing changed conditions arising more than one year after the last entry to this country that gave rise to a fear of persecution on account of the respondent’s religion.

Apparently, in addition to the new religion claim, the respondent had a preexisting basis for claiming asylum based on China’s coercive population control policies.  Having been allowed to apply for asylum, the respondent sought to include the older basis for asylum as well as the new ground.  It is not clear what the argument might be for not allowing this.  As the respondent was already found eligible to file an asylum application based on the religion claim, allowing the coercive population control claim would not bestow on the respondent any additional benefits beyond those already obtained through the accepted religion-based asylum claim.  Thus, allowing both grounds to be considered would not encourage the late filing of fraudulent applications for the purpose of obtaining employment authorization.  Furthermore, as the respondent was already pursuing the religion-based asylum claim in removal proceedings, allowing consideration of the additional ground would not serve any dilatory purpose.  The length of time required to complete the removal proceedings before the immigration judge would be the same whether the claim was based on one or two grounds.  Thus, allowing both grounds to be considered would not run afoul of either of the concerns that Congress meant to address in establishing the one year filing deadline.  It is thus entirely unclear why the BIA would consider barring the second ground from consideration.

There are legitimate reasons why one might not file an asylum claim within one year of entry.  In some instances, the refugee was simply not aware of the filing deadline; it is possible that he or she did not even learn of the relief of asylum until well after arrival.  Some refugees may be forced to stay with family or friends living in remote areas where legal advice is not readily available.  But even in urban centers, pro bono resources are presently stretched to their limits, and many lack the funds upon arrival to retain private attorneys.  Some with legitimate fears of persecution might have chosen not to apply due to unfavorable case law, a lack of supporting documentation, or a variety of other legal considerations.

The decision as to whether or not to come forward and apply for asylum, and possibly expose oneself to the risk of deportation, is a complicated one.  But once the decision has been made, it is to the advantage of all to hear any and all bases for asylum at once.  Besides from the administrative efficiency of such an approach, the Board needs to realize that a person’s fears and risks of harm are not so clearly compartmentalized.  An asylum claim begins with the applicant’s subjective fear of persecution.  Various fears may overlap or provide context.  For example, would an asylum claimant who had already experienced traumatic persecution at the hands of China’s government for violating the family planning policies be more likely to possess a genuine subjective fear of future persecution by the same governmental authorities on account of their religion?  Or would the applicant be objectively more likely to be singled out for religious persecution where the government had previously targeted them on population control grounds?

Although it became moot in the case presently before the Board, the issue is likely to be a recurring one.  As the Board’s recent asylum decisions have left much to be desired, it is hoped that when its members eventually consider this issue in a precedential decision, they will reach the correct result.

Copyright 2017 Jeffrey S. Chase.  All rights reserved.

 

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Jeffrey S. Chase is an immigration lawyer in New York City.  Jeffrey is a former Immigration Judge, senior legal advisor at the Board of Immigration Appeals, and volunteer staff attorney at Human Rights First.  He is a past recipient of AILA’s annual Pro Bono Award, and previously chaired AILA’s Asylum Reform Task Force.

REPRINTED BY PERMISSION

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I believe that Jeffrey and I have both consistently made the point that the BIA’s precedent decisions all to often fail to reflect a practical understanding of how asylum practice works from the private sector perspective.  That’s probably because none of the BIA’s current Appellate Immigration Judges has any recent experience representing asylum applicants.

PWS

11-16-17

TRUMP ADMINISTRATION LAUNCHES “STEALTH ATTACK” ON MUSLIM REFUGEES!

http://www.slate.com/articles/news_and_politics/jurisprudence/2017/11/trump_is_trying_to_secretly_sneak_through_another_muslim_ban.html

Dahlia Lithwick and Jeremy Stahl Report for Slate:

“At the end of last month, the Trump administration quietly rolled out new restrictions on certain groups of refugees, ostensibly aimed at “protect[ing] people from terrorist attacks and other public-safety threats.” This latest form of “extreme vetting” reportedly targeted citizens of 11 purportedly high “risk” countries, along with the children and spouses of refugees already in the United States.

These high “risk” refugees would be temporarily barred from entering the country and kept from resettlement, so yet another layer of reviews could be added to the already years-long process. Here is the list of affected countries: Egypt, Iran, Iraq, Libya, Mali, North Korea, Somalia, South Sudan, Sudan, Syria, and Yemen. Nine of these countries are Muslim-majority nations. The list was not made public in the executive order itself. Instead, the State Department released an accompanying memo saying that the refugee freeze would affect 11 unnamed countries for which additional security screening had been previously required for males age 16–50.

The new policy expands the additional scrutiny for people from those 11 nations to include all refugees, and not just males of a certain age, while attempting to hide which 11 countries are affected. It also “temporarily prioritizes” applications of refugees from countries not on the list. The list of countries has never been made public outside of media reports, but was included in a December 2016 State Department memo seen by Slate. The new executive order was the Trump administration’s latest attempt to secretly sanitize and repurpose President Trump’s long-proffered and repeatedly bungled Muslim ban.

To put it more simply: This is another Muslim ban.
In addition to the new vetting and resettlement restrictions for a certain type of refugee, the “follow-to-join” program for close relatives of refugees who are already in the U.S. was paused indefinitely until further review. That means that refugees already lawfully admitted will be prevented from reuniting with their spouses and minor children. Department of Homeland Security data shows that about 2,000 follow-to-join family members came to the U.S. in 2015. Just as a reminder, one of the first plaintiffs in a lawsuit against Trump’s first “travel ban,” Haider Sameer Abdulkhaleq Alshawi, was an Iraqi who had qualified for a Follow to Join Visa. Alshawi’s wife and 7-year-old son, whom he had not seen for three years, were lawful permanent residents living in Houston. He was detained at JFK Airport in transit to the U.S. when the first travel ban was signed in January, before ultimately being allowed to reunite with his family.

Seen together, the new restrictions will not only disproportionately affect Muslim refugees: They will also extend an already cumbersome process that at present features extensive vetting that can average between 18–24 months.”

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Readthe full article at the link.

More anti-Muslim religious discrimination and anti-refugee discrimination masquerading as as “national security.”

PWS

11-11-17

 

ROGUE U.S. IMMIGRATION JUDGE IN CHARLOTTE, NC? — BIA TWICE ORDERS JUDGE TO FOLLOW PRECEDENT & GIVE DUE PROCESS TO ASYLUM SEEKER!

https://www.lexisnexis.com/legalnewsroom/immigration/b/immigration-law-blog/archive/2017/11/10/unpub-bia-asylum-remand-insists-ij-follow-the-law-nov-6-2017.aspx?Redirected=true

Dan Kowalski reports at LexisNexis Immigration Community (quoting Respondent’s attorney Humza Kuzma):

“We appealed to the BIA, stating that the IJ was ignoring the law of the case and his direct instructions from a higher court. As Hassan noted in his FB post, we included redacted cases from a FOIA request another attorney had conducted, showing the various instances in the past two years where the IJ had been remanded in asylum proceedings. Yesterday, we got the remand, which reconfirmed that the prior rulings in the case were vacated and relying upon them was in judicial error, and instructed the IJ to grant our client a completely new hearing with an open record, and issue a new decision.”

BIA PANEL: Appellate Immigration Judges Guendelsberger, Kendall Clark, Grant

OPINION BY: Judge Edward R. Grant

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Read the full report and the BIA’s unpublished opinion at the link.

  • Why wasn’t this decision published?
  • Why wasn’t this Immigration Judge who is showing contempt for the BIA, precedent, asylum seekers, and Due Process named in the decision (a technique used by Article III Courts to deal with recalcitrant Judges)?
  • Why wasn’t this case remanded to a different Immigration Judge?
  • Why don’t we see more precedent decisions from appellate panels like this one which appears committed to a fair application of asylum law and reigning in rogue judges like this one?
  • How would an unrepresented individual ever be able to vindicate his or her statutory and constitutional rights before a biased and abusive judge like this?
  • What can be done to improve merit selection procedures for U.S. Immigration Judges so that individuals who are biased against migrants, unwilling comply with orders of higher tribunals, and uncommitted to Due Process will no longer be placed in judicial positions?

PWS

11-11-17

REAL DUE PROCESS MAKES A STUNNING DIFFERENCE! – NY PROJECT FINDS THAT REPRESENTED IMMIGRANTS ARE 12X MORE LIKELY TO WIN CASES!

https://www.vox.com/policy-and-politics/2017/11/9/16623906/immigration-court-lawyer

Dara Lind reports for VOX

“Omar Siagha has been in the US for 52 years. He’s a legal permanent resident with three children. He’d never been to prison, he says, before he was taken into Immigration and Customs Enforcement detention — faced with the loss of his green card for a misdemeanor.

His brother tried to seek out lawyers who could help Siagha, but all they offered, in his words, were “high numbers and no hope” — no guarantee, in other words, that they’d be able to get him out of detention for all the money they were charging.

Then he met lawyers from Brooklyn Defender Services — part of the New York Immigrant Family Unity Project, an effort to guarantee legal representation for detained immigrants. They demanded only one thing of him, he recalls: “Omar, you’ve got to tell us the truth.”

But Siagha’s access to a lawyer in immigration court is the exception.

There’s no right to counsel in immigration court, which is part of the executive branch rather than the judiciary. Often, an immigrant’s only shot at legal assistance before they’re marched in front of a judge is the pro bono or legal aid clinic that happens to have attorneys at that courthouse. Those clinics have such limited resources that they try to select only the cases they think have the best shot of winning — which can be extremely difficult to ascertain in a 15-minute interview.

But advocates and local governments are trying to make cases like Siagha’s the rule, not the exception. Soon, every eligible immigrant who gets detained in one of a dozen cities — including New York, Chicago, Oakland, California, and Atlanta — will have access to a lawyer to help fight their immigration court case.

The change started at Varick Street. The New York Immigrant Family Unity Project started in New York City in 2013, guaranteeing access to counsel for detained immigrants.

According to a study released Thursday by the Vera Institute for Justice (which is now helping fund the representation efforts in the other cities, under the auspices of the Safe Cities Network), the results were stunning. With guaranteed legal representation, up to 12 times as many immigrants have been able to win their cases: either able to get legal relief from deportation or at least able to persuade ICE to drop the attempt to deport them this time.

So far, cities have been trying to protect their immigrant populations through inaction — refusing to help with certain federal requests. Giving immigrants lawyers, on the other hand, seemingly makes the system work better. And if it works, it could leave the Trump administration — which is already upset with the amount of time it takes to resolve an immigration court case — very frustrated indeed. (The Department of Justice, which runs immigration courts, didn’t respond to a request for comment.)

Immigration court is supposed to give immigrants a chance for relief. In reality … it depends.

As federal immigration enforcement has ramped up over the past 15 years, nearly every component of it has gotten a sleek bureaucratic upgrade, a boatload of money, and heightened interest and oversight from Congress. But immigration court has been overlooked as everything else has been built up around it.

The reason is simple. Chronologically, most immigrants have to go through immigration court after being apprehended and before being deported. But bureaucratically, immigration courts are run by the Executive Office for Immigration Review, housed in the Justice Department instead of by the Department of Homeland Security. And when it comes to money and bureaucratic attention, that makes all the difference in the world.

From the outside, the striking thing about immigration court is how slow it is — lawyers already report that hearings for those apprehended today are scheduled in 2021. That’s also the Trump administration’s problem with it; the federal government is sweeping up more immigrants than it did in 2016 but deporting fewer of them.

But it doesn’t seem that way from the inside, to an immigrant who doesn’t have any idea what’s going on — especially one who’s being kept in detention.

This is the scene that Peter Markowitz accustomed himself to, as a young immigration lawyer at the Varick Street courtroom in New York: “People brought in, in shackles, with their feet and hands shackled to their waist, often not understanding the language of the proceedings, having no idea of the legal norms that were controlling their fate — being deported hand over fist.”

I know he’s not exaggerating; in my first morning watching immigration court proceedings in Minneapolis in 2008, I saw at least 10 detainees get issued deportation orders before lunch. Almost none had lawyers. Sometimes the judge would pause and explain to the detainee, in plain English, what was really going on — but she didn’t have to, and sometimes she wouldn’t bother.”

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Read Dara’s full article at the link.

No lawyer = no due process. Rather than trying to hustle folks out of the country without a full and effective chance for them to be heard — in other words, true Due Process — Jeff Sessions should be changing the Immigration Court system to put less reliance on detention and detention center “kangaroo courts” and more emphasis on insuring that each individual scheduled for a hearing has fair and  reasonable access to competent counsel.

I totally agree that due process can’t be put on a “timetable,” as Sessions and his crew at the DOJ seem to want. As observed by none other than Chief Justice John Roberts — certainly no “bleeding heart liberal” —“It takes time to decide a case on appeal. Sometimes a little; sometimes a lot.” Nken v. Holder, 556 U.s. 418 (2009). That’s even more true on the trial level.

I have a somewhat different take on whether representation and providing full due process will ultimately slow down the system. In the short run, represented cases might take longer than unrepresented ones (although I personally found that not invariably true). However, as noted by Chief Judge Katzmann, lack of representation both promotes wrong, and therefore unfair, results, but also inhibits the proper development of the law. (Perhaps not incidentally, I note that Chief Judge Katzmann actually took time to attend and participate in Annual Immigration Judge Training Conferences back in the day when the “powers that be” at DOJ and EOIR deemed such training to be a necessary ingredient of a fair judicial system — something that was eliminated by Sessions’s DOJ this year. Apparently, new, untrained Immigration Judges can be expected to “crank out” more final orders of removal than trained judges.)

When I was in Arlington, the vast majority of the non-detained respondents were represented, and the majority of those got some sort of relief — in other words, won their cases to some extent. As time went on, this development required the DHS to adjust its position and to stop “fully litigating” issues that experience and the law told them they were going to lose.

That, in turn, led to more efficient and focused hearings as well as decisions to drop certain types of cases as an exercise of prosecutorial discretion. Had that process been allowed to continue, rather than being artificially arrested by the Trump regime, it could well have eventually led to more efficient use of docket time and alternate means of disposing of cases that were “likely losers” or of no particular enforcement value to the DHS or the country at large.

By contrast, “haste makes waste” attempts to force cases through the system without representation or otherwise in violation of Due Process often led to appellate reversals, “do-overs,” and re-openings, all of which were less efficient for the system than “doing it right in the first place” would have been!

In my view (echoed at least to some extent by my colleague retired Judge Jeffrey Chase), more conscientious publication of BIA precedents granting asylum could and should have taken large blocks of asylum cases off the “full merits” dockets of Immigration Judges — either by allowing them to be “short docketed” with the use of stipulations or allowing them to be favorably disposed of by the DHS Asylum Offices.

No system that I’m aware of can fully litigate every single possible law violation. Indeed, our entire criminal justice system works overwhelmingly from “plea bargaining” that often bears little if any resemblance to “what actually happened.” Plea bargaining is a practical response that reflects the reality of our justice system and  the inherent limitations on judicial time. And effective plea bargaining requires lawyers on both sides as well as appropriate law development as guidance that can only happen when parties are represented. The absurd claim of Sessions and the DHS that the law allows them no discretion as to whether or not to bring certain categories of removal cases is just that — absurd and in direct contradiction of the rest of the U.S. justice system.

The current policies of the DHS and the DOJ, which work against Due Process, rather than seeking to take advantage of and actively promote it, are ultimately doomed to failure. The only question is how much of a mess, how many wasted resources, and how much pain and unfairness they will create in the process of failing.

Andrea Saenz, mentioned in the article is a former Judicial Law clerk at the New York Immigration Court. I have always admired her clear, concise, “accessible” legal writing — much like that of Judge Jeffrey Chase — and have told her so.

I am also proud that a number of attorneys involved in the “New York Project” and the Brooklyn Defenders are alums of the Arlington Immigration Court or my Georgetown Law RLP class — in other words, charter members of the “New Due Process Army!”  They are literally changing our system, one case and one individual life at a time. And, they and their successors will still be at it long after guys like Jeff Sessions and his restrictionist cronies and their legally and morally bankrupt philosophies have faded from the scene.

Thanks to my friend the amazing Professor Alberto Benítez from the GW Law Immigration Clinic for sending me this item!

PWS

11-10-17

EUGENE ROBINSON IN WASHPOST: The Master Of Racial Identity Politics & His GOP Stooges!

https://www.washingtonpost.com/opinions/president-trump-is-the-master-of-abhorrent-identity-politics/2017/11/02/e675bca8-c003-11e7-959c-fe2b598d8c00_story.html?utm_term=.47797a94c8ea

Robinson writes:

“By now it should be clear that racism is a feature of the Trump administration, not a bug.

White House Chief of Staff John F. Kelly’s hideous rewriting of Civil War history is merely the latest evidence. Can anyone really believe “the lack of an ability to compromise” caused that bloody war? Is it possible to become a four-star Marine general without knowing that the Constitution itself was structured around a compromise on slavery? Or that the first half of the 19th century saw a series of equally immoral compromises that let slavery continue?

How can a man whose son died in service of his country believe that “men . . . of good faith” is an acceptable description of military officers who committed treason and took up arms against the United States, as did Robert E. Lee and the rest of the Confederate generals? Do people of good faith hold others in cruel bondage, buy and sell them like chattel and forcibly compel their unpaid labor?

Kelly buys into the racist, revisionist, dripping-with-Spanish-moss version of history that white Southerners concocted as they were imposing the system of Jim Crow repression. Anyone ignorant enough to believe the war was about anything other than slavery should read the declarations issued by the Confederate states upon secession. Here is a quote from Mississippi’s proclamation, which is vile but at least forthright:

“Our position is thoroughly identified with the institution of slavery — the greatest material interest of the world. Its labor supplies the product which constitutes by far the largest and most important portions of commerce of the earth. These products are peculiar to the climate verging on the tropical regions, and by an imperious law of nature, none but the black race can bear exposure to the tropical sun. These products have become necessities of the world, and a blow at slavery is a blow at commerce and civilization.”

Those who profited handsomely from slavery — including the growing financial markets of Wall Street and the bustling textile mills of New England — knew full well that it was wrong. They just didn’t want to give it up.

Kelly’s “good faith” historical claptrap would be bad enough in a vacuum. But it alarmingly echoes President Trump’s “many sides” analysis of the Charlottesville incident — and continues a tone that Trump set at the outset of his campaign, when he vilified Mexican immigrants as drug dealers and rapists.

. . . .

When Trump miscalibrates and strays into explicit racism, as he did in the case of Charlottesville, there are expressions of shock and horror from fellow Republicans and even members of his Cabinet. But nobody renounces him, except senators who are about to retire. Nobody quits his administration on principle. Trump’s enablers meekly go back to the all-important business of cutting rich people’s taxes.

Making whites feel embattled and aggrieved is central to the Trump presidency. It is what makes him different from all other recent presidents, perhaps going back as far as Woodrow Wilson, who imposed Jim Crow segregation on the federal workforce. It is what makes Trump so corrosive to the national fabric.

There is one master practitioner of identity politics in the United States today. Shamefully, he lives in the White House.”

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Read Robinson’s entire op-ed at the link.

Yup! Hard to add much to this analysis! Kelly’s perverted account of the Civil War (although depressing) is not particularly surprising when you remember that this is a guy who bought into the Trump-Gonzo-Miller-Bannon racist and bogus “overrun by the immigrant hordes and Muslim terrorists” fear-mongering hook, line, and sinker, with no apparent reflection on its demonstrable falsity or stupidity.

PWS

11-05-17

“DYNAMIC DUO” LEADS “GW IMMIGRATION CLINIC BRIGADE” OF THE NEW DUE PROCESS ARMY (“NDPA”) INTO ACTION – ADVANCING AND DEFENDING DUE PROCESS RIGHTS FOR OUR MOST VULNERABLE RESIDENTS WHILE TEACHING THE NEXT GENERATION OF LAWYERS! — PLUS SPECIAL BONUS: Text of My Presentation To Clinic Entitled “RECLAIMING THE VISION – A PLAN FOR ACTION”

 

Alberto M. Benítez

Before joining the Law School faculty as director of the Immigration Clinic in 1996, Professor Benítez was on the faculty of the legal clinics at Chicago Kent College of Law and Northwestern University School of Law. Prior to becoming a clinician, he was a staff attorney at the Chicago Lawyers’ Committee for Civil Rights Under Law and the Legal Assistance Foundation of Chicago, as well as an intern at the Centro de Estudios Legales y Sociales in Buenos Aires, Argentina. Professor Benítez teaches Immigration Law. In addition, in the summers he has taught at the law schools of the Instituto Tecnológico Autónomo de México and the Universidad Panamericana, in Mexico City. In the spring 2003 semester Professor Benítez was a visitor at the Boyd School of Law of the University of Nevada at Las Vegas, assisting in the development of that law school’s immigration clinic.

Professor Benítez has devoted his entire legal career to working in the public interest, generally with aliens, and so he is familiar with immigration law in its proper context. Evictions, domestic violence, public benefits, etc., these are areas of law that influence the decisions made by the aliens. Professor Benítez was fortunate early in his career to be associated with several supportive, dedicated lawyers who enabled him to learn and progress from them. Therefore, he tries to pass on what he learned and how he learned it to his students, in particular the “learn by doing” system that his early colleagues used with him. That said, students will get out of their experience in this clinic and from their association with Professor Benítez what they put into it.

An Introduction to the United States Legal System by Professor Alberto Benitez

Paulina Vera

Paulina Vera, Esq. supervises Immigration Clinic law students and provides legal representation to asylum seekers and respondents facing deportation in Immigration Court. She previously served as the only Immigration Staff Attorney at the Maryland-based non-profit, CASA. Paulina is a 2015 graduate of The George Washington University Law School. During law school, she was a student-attorney at the Immigration Clinic and worked with Professor Benitez. She also interned at Kids in Need of Defense (KIND), American Immigration Council, and the Arlington Immigration Court. Paulina is admitted to practice law in Maryland and before federal immigration tribunals.

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FORGET SESSIONS’S BOGUS SMEAR CAMPAIGN AGAINST “DIRTY IMMIGRATION LAWYERS” — THESE ARE THE “REAL FACES” OF AMERICAN IMMIGRATION LAW TODAY, FIGHTING TO PROTECT THE CONSTITUTIONAL RIGHTS OF ALL AMERICANS! — AND THEY AREN’T INTIMIDATED BY A DISINGENUOUS AND FEAR-MONGERING ATTORNEY GENERAL! 

I was pleased to be invited to speak to the GW Immigration Clinic on Thursday, Nov. 2, 2017.

 

I am, of course, particularly proud of my good friend the amazing Paulina Vera, who is a distinguished alum of both the GW Immigration Clinic and the Arlington Immigration Court Legal Intern Program!

 Here’s what I said:

 

 

RECLAIMING THE VISION – A PLAN FOR ACTION

 

BY PAUL WICKHAM SCHMIDT

UNITED STATES IMMIGRATON JUDGE (Retired)

 

The George Washington Law School Immigration Clinic

Washington, DC.

 

Nov. 2, 1017

 

 

Good afternoon, and thanks so much to you and my good friend and Alexandria neighbor Professor Alberto Benitez for inviting me. I want to express my deep appreciation for all of the great help that your Clinic gave to vulnerable migrants and to the Judges of the U.S. Immigration Court in Arlington, VA in carrying out our due process mission over the years that I was on the bench, from 2003 to 2016. I’m also delighted that the amazing Paulina Vera, a “distinguished alum” of the Arlington Immigration Court Internship Program is your Assistant Instructor.

 

Professor Benitez tells me that all of you have read my recent article from Bender’s Immigration Bulletin entitled “Immigration Courts: Reclaiming the Vision.” I of course was referring to the noble vision of “being the world’s best administrative tribunals guaranteeing fairness and due process for all.”

 

As you also know, my article set forth a “five step” program for achieving this: 1) a return to Due Process as the one and only mission – ditching the current political manipulation of the courts; 2) an independent Article I Court structure, to replace the current outmoded “agency structure” in the DOJ: 3) professional court management along the lines of the Administrative Office for U.S. Courts and merit-based selection of judges; 4) an independent appellate body that functions in the manner of an Article III court, not as an “Agency Service Center;” and 5) an e-filing system to replace the current “files in the aisles.”

 

The question is how do we get there from here. Sadly, the individual who should be pushing these reforms, our Attorney General Jeff Sessions, has shown absolutely no interest in meaningful court reforms or protecting due process, beyond rather mindlessly proposing to throw many more new untrained judges into an already dysfunctional and disturbingly inconsistent judiciary and to force a system already careening out of control to “pedal even faster.” That’s a program for failure. Moreover, in my view, Sessions has demonstrated through his public statements and actions to date a clear pro-enforcement and anti-immigrant bias that makes him the wrong individual to be in change of a due process court system.

 

The other group who should be solving this problem is Congress. Immigration Court reform should be a bipartisan “no-brainer.” Both sides of the “immigration debate” should want a fair and efficient Immigration Court system that fully complies with due process, gets the results correct, and doesn’t accumulate huge backlogs. Unfortunately, however, Congress currently seems preoccupied with other issues that well might be less important to our country but more “politically expedient.” Although there is a fine draft “Article I Bill” floating around “The Hill,” prepared by the Federal Bar Association with input from the National Association of Immigration Judges, to date I am aware of no actual Congressional sponsor who has “thrown it in the hopper.”

 

So, do we abandon all hope? No, of course not!   Because there are hundreds of newer lawyers out there who are former Arlington JLCs, interns like Paulina, my former students, and those who have practiced before the Arlington Immigration Court, and folks like you who have had the great leadership of Professor Benitez and others like him in Immigration, Refugee, and Asylum clinics throughout the country!

        

They form what I call the New Due Process Army!And, while my time on the battlefield is winding down, they are just beginning the fight! They will keep at it for years, decades, or generations — whatever it takes to force the U.S. immigration judicial system to live up to its promise of guaranteeing fairness and due process for all!

        

What can you do to get involved now? The overriding due process need is for competent representation of individuals claiming asylum and/or facing removal from the United States. Currently, there are not nearly enough pro bono lawyers to insure that everyone in Immigration Court gets represented.

       

And the situation is getting worse. With the Administrations planned expansion of so-called expedited removal,lawyers are needed at earlier points in the process to insure that those with defenses or plausible claims for relief even get into the Immigration Court process, rather than being summarily removed with little, if any, recourse.

 

Additionally, given the pressure that the Administration is likely to exert through the Department of Justice to movecases quickly through the Immigration Court system with little regard for due process and fundamental fairness, resort to the Article III Courts to require fair proceedings and an unbiased application of the laws becomes even more essential. Litigation in the U.S. District and Appellate Courts has turned out to be effective in forcing systemic change. However, virtually no unrepresented individual is going to be capable of getting to the Court of Appeals, let alone prevailing on a claim.

 

So, what you are doing here at the GW Immigration Clinic directly supports the Immigration Court reform movement by insuring that the system will not be able to continue to run over the rights of the unrepresented or underrepresented and that individuals who are unfairly denied relief at the Immigration Court and BIA levels are positioned to seek review in the independent Article III Courts.

 

I also have been working with groups looking for ways to expand the accredited representativeprogram, which allows properly trained and certified individuals who are not lawyers to handle cases before the DHS and the Immigration Courts while working for certain nonprofit community organizations, on either a staff or volunteer basis. Notwithstanding some recently publicized problems with policing the system, which I wrote about on my blog immigrationrcourtside.com, this is a critically important program for expanding representation in Immigration Courts. Additionally, the accredited representativeprogram is also an outstanding opportunity for retired individuals, like professors, who are not lawyers to qualify to provide pro bono representation in Immigration Court to needy migrants thorough properly recognized religious and community organizations.

        

Even if you are not practicing or do not intend to practice immigration law, there are many outstanding opportunities to contribute by taking pro bono cases. Indeed, in my experience in Arlington, big lawfirms were some of the major contributors to highly effective pro bono representation. It was also great hands onexperience for those seeking to hone their litigation skills.

 

Those of you with language and teaching skills can help out in English Language Learning programs for migrants.   I have observed first hand that the better that individuals understand the language and culture of the US, the more successful they are in navigating our Immigration Court system and both assisting, and when necessary, challenging their representatives to perform at the highest levels. In other words, they are in a better position to be informed consumersof legal services.

        

Another critical area for focus is funding of nonprofit community-based organizations and religious groups that assist migrants for little or no charge. Never has the need for such services been greater.

 

But, many of these organizations receive at least some government funding for outreach efforts. We have already seen how the President has directed the DHS to “defund” outreach efforts and use the money instead for a program to assist victims of crimes committed by undocumented individuals.

 

Undoubtedly, with the huge emphases on military expansion and immigration enforcement, to the exclusion of other important programs, virtually all forms of funding for outreach efforts to migrants are likely to disappear in the very near future. Those who care about helping others will have to make up the deficit. So, at giving time, remember your community nonprofit organizations that are assisting foreign nationals.

 

The Federal Bar Association (“FBA) has been a strong moving force for court reform resulting in an Article I U.S. Immigration Court. So, becoming a “student member” of the FBA and getting involved with our local chapter is another way to support reform.

 

Finally, as an informed voter and participant in our political process, you can advance the cause of Immigration Court reform and due process. For the last 16 years politicians of both parties have largely stood by and watched the unfolding due process disaster in the U.S. Immigration Courts without doing anything about it, and in some cases actually making it worse.

 

The notion that Immigration Court reform must be part of so-called comprehensive immigration reformis simply wrong. The Immigration Courts can and must be fixed sooner rather than later, regardless of what happens with overall immigration reform. Its time to let your Senators and Representatives know that we need due process reforms in the Immigration Courts as one of our highest national priorities.

 

Folks the U.S Immigration Court system is on the verge of collapse. And, there is every reason to believe that the misguided enforce and detain to the maxpolicies being pursued by this Administration will drive the Immigration Courts over the edge. When that happens, a large chunk of the entire American justice system and the due process guarantees that make American great and different from most of the rest of the world will go down with it.

In conclusion, I have shared with you the Courts noble due process vision and my view that it is not currently being fulfilled. I have also shared with you my ideas for effective court reform that would achieve the due process vision and how you can become involved in improving the process.

 

Now is the time to take a stand for fundamental fairness’! Join the New Due Process Army! Due process forever!   

 

Thanks again for inviting me and for listening. I’d be happy to take questions or listen to suggestions.

 

(11-05-17)

 

Here’s a link to the above text:

RECLAIMING THE VISION – A PLAN FOR ACTION

PWS

11-05-17

 

 

DOJ PLANS TO CUT U.S. IMMIGRATION COURT BACKLOG IN HALF BY 2020 — CONTINUES TO PRESS BOGUS CLAIM THAT BACKLOGS DRIVEN BY PRIVATE ATTORNEYS — THE TRUTH: BACKLOGS DRIVEN PRIMARILY BY POOR DECISIONS BY CONGRESS (E.G., USG SHUTDOWN) & “AIMLESS DOCKET RESHUFFLING” BY THE DOJ OVER THE PAST THREE ADMINISTRATIONS, INCLUDING THIS ONE!

https://www.washingtonpost.com/local/immigration/doj-details-plan-to-slash-immigration-court-backlog/2017/11/03/03fcef34-c0a0-11e7-959c-fe2b598d8c00_story.html

Maria Sacchetti reports in the Washington Post:

“The Department of Justice said Friday it is aiming to slash the massive immigration court backlog in half by 2020 by adding judges, upgrading technology and refusing to tolerate repeated delays in deportation cases.

Officials, who briefed reporters on condition that they not be identified by name, said the effort is part of the Trump administration’s broad plan to more efficiently handle cases of undocumented immigrants, who number 11 million nationwide.

The administration has reversed Obama-era policies that allowed prosecutors to indefinitely postpone low-priority cases, which the Justice Department officials said allowed some immigrants to delay “inevitable” deportations. In other cases, they said, immigrants who deserved to win their cases were delayed for years because of the backlog.

The immigration court backlog has tripled since 2009, the year former president Obama took office, to more than 630,000 cases in October.

“That is what this administration is committed to, getting this done right, ensuring that we’re never in this place again,” a Justice Department official said. “Really and truly, when you look at the numbers . . . it reflects the fact that the last administration likely wasn’t as committed to ensuring that the system worked the way that Congress intended it to.”

The agency, which oversees the administrative immigration courts, said it plans to hire new immigration judges, use technology such as videoconferencing, and increase judges’ productivity by setting case-completion guidelines, though officials would not give details.

The department also will have a “no dark courtrooms” policy, the officials said, explaining that there are at least 100 courtrooms nationwide that are empty every Friday because of judges’ alternate work schedules. The Justice Department is tapping retired judges to fill those courts.

The immigration court overhaul comes as the Trump administration is carrying out policies that could generate even more cases in coming months. Arrests and deportations from the interior of the United States are rising sharply, and the Trump administration has ended Obama-era protections for some undocumented immigrants, including 690,000 undocumented immigrants who arrived in the United States as children.

By Monday, the Trump administration is also expected to say if it will renew temporary protected status for thousands of longtime immigrants from Honduras and Nicaragua whose permits expire next year.

The Justice Department officials said they are no longer widely using certain protections for undocumented immigrants, including a tool known as prosecutorial discretion that allowed the government to set aside low-priority deportation cases.

DOJ officials criticized immigration lawyers, saying they “have purposely used tactics designed to delay” immigration cases. As of 2012, the officials said, there were an average of four continuances for each case before the court.

Gregory Chen, director of government relations for the American Immigration Lawyers Association, said the administration’s plan to cut the backlog would “undermine judicial independence” in the immigration courts.

“This administration has been extremely hostile toward the judiciary and the independence of immigration judges, as well as other judges,” Chen said.

Speeding up cases depends partly on congressional funding. It also rests partly on the actions of immigration judges, who have expressed concerns about due process for immigrants, many of whom are facing deportation to some of the world’s most violent countries. Immigrants are not entitled to a government-appointed lawyer in these courts and often handle cases on their own.

The Justice officials would not comment on reports that they will impose case-completion quotas on judges, which raised an outcry from the judges’ union. But the officials said they would give judges clear standards to complete cases and add more supervisors.

Officials say they are already seeing results from efforts this year to improve efficiency. From February to September, judges ordered 78,767 people to leave the country, a 33 percent jump over the same period in 2016. The total number of final decisions, which includes some immigrants who won their cases, is 100,921.”

***************************************************

THE GOOD:

  • Using retired U.S. Immigration Judges to fill in while Immigration Judges are on leave or otherwise scheduled to be out of court is a good idea. Indeed, the National Association of Immigration Judges (“NAIJ”) has been pushing this idea since the Clinton Administration with no results until now. Additionally, finally taking advantage of the available “Phased Retirement Options” for the the many Immigration Judges nearing retirement could also be helpful.
  • Over time, hiring additional Immigration Judges could be helpful, at least in theory. But, that depends on whether the hiring is done on a merit basis, the new judges are properly trained, and they have the space, equipment, and support staff to function. The DOJ/EOIR’s past record on accomplishing such initiatives has been beyond abysmal. So, it’s just as likely that additional hiring will harm the Immigraton Courts’ functioning as it is that it will help.

THE BAD:

  • “Productivity standards” are totally inappropriate for an independent judiciary. They are almost certain to infringe on due process by turning judges into “assembly line workers.”  Moreover, if hiring is done properly, judges should be self-motivated professionals who don’t need “Micky Mouse performance evaluations” to function. While it might be helpful to have some “periodic peer review” involving input from those appearing before the courts and judges of courts reviewing the judges’ work, such as takes place in some other independent judicial systems, that clearly isn’t they type of system this Administration has in mind.
  • More use of Televideo is problematic. In person hearings are definitely better for delivering due process. The EOIR Televideo equipment tends to be marginal from a technology standpoint. “Pushing the envelope” on Televideo could well force the Article IIIs to finally face up and hold at least some applications of this process unconstitutional.
  • More “Supervisory Judges” are totally unnecessary and a waste of resources. In the “EOIR World,” Supervisory Judges often don’t hear cases. Moreover, as noted previously, professional judges need little, if any, real “supervision.” The system might benefit from having local Chief Judges (“first among equals”), like in other independent judicial systems, who can address administrative issues with the Court Administrator and the public, But, judges don’t need supervision unless the wrong individuals are being selected as judges. And, as in the U.S. District Courts, local Chief Judges should carry meaningful case loads.
  • Every other court system in the U.S., particularly the U.S. District Courts, rely on heavy doses of “Prosecutorial Discretion” (“PD”) by government prosecutors to operate. By eliminating PD from the DHS Chief Counsels, then touting their misguided actions, this Administration has  guaranteed the ultimate failure of any backlog reduction plan. Moreover, this stupid action reduces the status of the DHS Assistant Chief Counsels. There is no other system I’m aware of where the enforcement officials (“the cops”) rather than professional prosecutors make the decisions as to which cases to prosecute. PD and sensible use of always limited docket time is part of the solution, not the problem, in the Immigration Courts.

THE UGLY:

  • The DOJ and EOIR continue to perpetuate the myth that private attorneys are responsible for the backlogs. No, the backlogs are primarily the result of Congressional negligence multiplied by improper politically motived docket manipulation and reschuffling to meet DHS enforcement priorities by the last three Administrations, including this one! This Administration was responsible for unnecessarily “Dark Courtrooms” earlier this year in New York and other heavily backlogged Immigration Courts.
  • Although not highlighted in this article, EOIR Acting Director James McHenry recently admitted during Congressional testimony that EOIR has been working on e-filing for 16 years without achieving any results! Thats incredible! McHenry promised a “Pilot Program” in 2018 with no telling when the system will actually be operational. And DOJ/EOIR has a well-established record of problematic and highly disruptive “technology rollouts.”

THE INCREDIBLE:

  • As usual, the DOJ/EOIR “numbers” don’t add up. EOIR “touts” compleating approximately 100,000 cases in the 7-month period ending on August 31, 2017. That’s on a pace to complete fewer than 200,000 cases for a fiscal year. But, EOIR receives an average of at least 300,000 new cases each year (even without some of the “Gonzo” Enforcement by the Trump DHS).  So, EOIR would have to “pick up the pace” considerably just to keep the backlogs from growing (something EOIR hasn’t done since before 2012). Not surprisingly, TRAC and others show continually increasing backlogs despite having more judges on board. To cut the backlog from 640,000 to 320,000 (50%) by 2020, the courts would have to produce an additional 160,000 annual completions in 2018 and 2019! That, in turn, would require completing a total of at least 460,000 cases in each of those years. That’s an increase of 230% over the rate touted by DOJ/EOIR in the Post article. Not going to happen, particularly since we’re already more than one month into FY 2018 and Congress has yet to authorize or appropriate the additional resources the DOJ wants!

WHAT’S CLEAR:

  • The DOJ hocus pocus, fake numbers, unrealistic plans, political scheming, cover-ups, blame shifting, and gross mismanagement of the U.S. Immigration Courts must end!
  • Unless and until Congress creates an independent, professionally managed Article I Immigration Court, any additional resources thrown into the current Circus being presided over by Jeff Sessions’s DOJ would be wasted.

PWS

11-04-17

 

 

 

 

 

 

 

 

MICA ROSENBERG ON REUTERS TV: TRUMP TARGETS KIDS!

http://reut.tv/2yqSFn6

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Kids and other vulnerable individuals seem like a logical targets for bullies like Trump, Sessions, and the rest of the GOP White Nationalist Gang.

Good things aren’t going to happen to a country that picks on children and enables cowardly leaders.

But, after all, these Dudes are still defending the Confedracy, rebellion against the USA, and the fight to preserve slavery! I guess once on the wrong side of history, always on the wrong side of history. The real question is where to the rest of us stand, and what are we can do about the steady erosion of law, morality, and humane values by the Trump Administration and its supporters.

PWS

11-03-17

 

 

“THEY SHALL REAP WHAT THEY SOW” – BIA PASSES ON CHANCE TO GIVE BELEAGUERED U.S. IMMIGRATION JUDGES SOME DOCKET CONTROL — Matter of J-A-B- & I-J-V-A-, 27 I&N Dec. 168 (BIA 2017)

3908

Matter of J-A-B- & I-J-V-A-, 27 I&N Dec. 168 (BIA 2017)

BIA HEADNOTE:

“An Immigration Judge does not have authority to terminate removal proceedings to give an arriving alien an opportunity to present an asylum claim to the Department of Homeland Security in the first instance.”

PANEL: Appellate Immigration Judge MALPHRUS, MULLANE, and CREPPY

OPINION BY: Judge Malphrus

*****************************************************

Most “real” courts reserve to themselves some authority to return, remand, or otherwise force action on the part of parties. For example, when the Obama Administration announced an expanded “Prosecutorial Discretion”  (“PD”) program, at least one Court of Appeals required that the Government review each case on their Petition for Review docket and state in advance whether or not it intended to exercise “PD.” Those PD cases were then “un-docketed” by the Article III Court.

Given the huge backlogs for new non-detained asylum cases in most U.S. Immigration Courts, allowing Immigration Judges on a case-by-case basis to require the DHS to decide whether or not they would grant asylum before proceeding to place a case on an overcrowded “Individual Hearing” docket makes lots of sense to me. Perhaps one reason that the Immigration Court docket is in such bad shape is that DOJ and EOIR routinely allow themselves to be “pushed around” by DHS in ways that few other courts would tolerate from a Government party.

If any independent party ever did a detailed analysis of the “Immigration Court Backlog,” I’m betting that they would find a significant number of cases being “warehoused” by EOIR for the DHS. These are cases that could and should have been resolved favorably to the Respondent by the DHS without a trip to Immigration court. But, a rational approach to the backlog is not going to happen with the current Administration’s “Gonzo” enforcement policies and a “captive” Immigration Court system .

PWS

11-03-17

WASHPOST: TRUMP’S ANTI-IMMIGRANT WHITE NATIONALIST HYSTERIA & UNJUSTIFIED ATTACKS ON OTHERS DIMINISHES OUR COUNTRY AND MAKES US LESS SAFE!

Three Editorials in today’s Washington Post emphasize the extremely counterproductive nature of Trump’s response to the NY terrorist attack.

First, on his inappropriate attempt to blame immigrants for the incident:

https://www.washingtonpost.com/opinions/trumps-response-to-the-new-york-attack-was-downright-dispiriting/2017/11/01/00558930-bf43-11e7-8444-a0d4f04b89eb_story.html?utm_term=.133a8ef49c1b

“IN LOWER MANHATTAN on Tuesday, not far from the memorial to the 9/11 attack on the World Trade Center, eight people were killed and 12 injured when a man espousing fidelity to the Islamic State drove a rented pickup down a busy bike path along the Hudson River. “It was gruesome. It was grisly. It was surreal,” one witness said of bicyclists and pedestrians being mowed down. The attack on innocent people enjoying a fine autumn day was a chilling reminder of the persistent threat posed to the United States by Islamist extremists — and their ingenuity in finding ways to commit murder.

Some small comfort can be taken in the fact that in the 16 years since the fall of the twin towers, improvements in protecting the homeland and fighting terrorism abroad have lessened the terrorists’ strength to strike and improved our ability to respond. The quick actions of police and other first responders during Tuesday’s tragedy should be applauded. So must the resilience and strength of the people of New York City, who made clear they will not be cowed by fear.

Far less inspiring — indeed, downright dispiriting — was the reaction of President Trump. In a series of tweets that apparently were informed (a word we use loosely) by his viewing of “Fox & Friends,” Mr. Trump went on a harangue about immigration and attacked Senate Minority Leader Charles E. Schumer (D-N.Y.). On Wednesday, Mr. Trump signaled he might upend the judicial process by declaring the suspected attacker an enemy combatant to be shipped off to the Guantanamo Bay prison; federal terrorism charges filed against him later in the day likely would foreclose that from happening. Note that the White House wouldn’t discuss gun control after last month’s mass shooting in Las Vegas, on the grounds that it would politicize a tragedy, but it had no problem launching partisan attacks following a terrorist strike that ought to unify all Americans. Note also, as The Post’s Philip Bump pointed out, that Mr. Trump is quick to jump to conclusions when there are incidents involving immigrants but is far more circumspect when nonimmigrants are involved.

What’s really needed from the Trump administration is not blame-shifting but a serious attempt to investigate and learn from this latest attack. Were others involved or aware of the alleged plans dating back a year that went into the attack? Are authorities right in their initial assessment that the suspect became “radicalized domestically” while living in the United States? Were signals missed when he appeared on the radar of law enforcement in connection with the investigations of other suspects? The 29-year-old, authorities said, allegedly “followed almost exactly to a T” instructions that the Islamic State has put out on its social-media channels on how to carry out attacks. So what can be done to detect and deter other would-be followers?

Among those killed Tuesday were five Argentines who were part of a group of school friends who traveled to New York to celebrate the 30th anniversary of their high school graduation. It was their dream trip to a city known for being open and generous and diverse. Those are the traits that make America great; to undermine them in response to Tuesday’s attack only plays into the hands of terrorists.”

***************************************

Second, the Editorial Board responds to Trump’s attempt to blame Senator Chuck Schumer of New York for the attack:

https://www.washingtonpost.com/opinions/for-trump-new-yorks-tragedy-means-a-new-attack-on-immigration/2017/11/01/8ffa0940-bf38-11e7-97d9-bdab5a0ab381_story.html?utm_term=.ead2a22ecd7d

“PRESIDENT TRUMP, ever prone to seek out scapegoats, fastened on a new target in the wake of the terrorist attack in New York: the state’s senior Democratic senator, along with a 27-year-old visa program that offers applicants from dozens of countries a shot at immigrating to the United States.

Mr. Trump singled out Sen. Charles E. Schumer, who, in 1990, sponsored the diversity visa program, through which the alleged attacker in New York, Sayfullo Saipov, is reported to have immigrated to the United States from his native Uzbekistan. In a tweet, the president derided the program as “a Chuck Schumer beauty.”

Never mind that Mr. Schumer’s legislation establishing the program attracted bipartisan support; or that it was signed into law by President George H.W. Bush, a Republican; or even that Mr. Schumer himself unsuccessfully bargained to end the program, in 2013, in return for a bill granting legal residence to millions of undocumented immigrants already in the United States. Neither the facts nor the normal political imperative to avoid partisanship in the wake of a terrorist attack appeared to move Mr. Trump.

His tweet made it appear that his overriding interest in an assault allegedly backed by the Islamic State is to use it to assail immigration — in this instance, a legal program whose beneficiaries represent a speck in the overall number of immigrants. Managed by the State Department since 1995, the program now grants up to 50,000 visas annually, via a random lottery, to citizens of dozens of countries who would otherwise be mostly overlooked in the annual influx of green-card recipients. In recent years, many of the winners have been from Africa and Eastern Europe.

Having reaped political advantage as a candidate in vilifying illegal immigrants, Mr. Trump has set his sights in office on legal migrants, including refugees, from a handful of mostly Muslim countries, whom he’d like Americans to see as an undifferentiated mass of potentially violent interlopers. Gradually, he is chipping away at what was once a national consensus that immigrants are a critical source of vitality, invention and international appeal.

Like almost any immigration program, the diversity visa lottery is imperfect and susceptible to abuse. The fortunate winners, who represent less than 1 percent of those who have applied annually in recent years, are not uniformly equipped to thrive in this country; many lack an education beyond high school. As Mr. Saipov may turn out to prove, even the extensive vetting required of all who immigrate through the program does not provide an ironclad guarantee that it is impervious to applicants who might seek to harm the United States.

The lottery program might be improved. Still, the fact that more than 11 million people applied for it in fiscal 2016 reflects the magnetic appeal the United States continues to exert around the world. Satisfying a small fraction of that demand, through the lottery or some other legal means, is a powerful tool of public diplomacy in countries whose citizens might otherwise have no hope of coming here.”

***************************************************

Third, Jennifer Rubin (“JRUBE”) comments on Trump’s “mindless,” totally inappropriate, attack on our justice system (in other words, on our Constitution):

https://www.washingtonpost.com/blogs/right-turn/wp/2017/11/02/trumps-mindless-insult-to-the-american-judicial-system/?hpid=hp_no-name_opinion-card-b%3Ahomepage%2Fstory&utm_term=.6be7fbcdabb0

“Asked about the suspect Wednesday, President Trump called him an “animal.” Prompted to say whether he thought Saipov should be sent to the detention facility at Guantanamo Bay, Cuba, Trump said, sure, he’d consider it. Later, at Wednesday’s White House press briefing, Sarah Huckabee Sanders said flatly that the White House considered the suspect an “enemy combatant.”

The president also said yesterday that the American justice system (presumably including his own Justice Department) is a “joke” and a “laughingstock.” He further opined, “We also have to come up with punishment that’s far quicker and far greater than the punishment these animals are getting right now,” Trump said. (Terrorists are subject to the death penalty, so it’s unclear what he had in mind.) “They’ll go through court for years … We need quick justice, and we need strong justice,” he said.

Thankfully, the Justice Department, like the Pentagon, has learned when to ignore Trump. On Wednesday, Saipov was charged in federal court. By Thursday morning, Trump was backing off his support for sending Saipov to Guantanamo. Once again, the ignorant president shot from the hip and had to creep back to reality.

Just how harmful were Trump’s statements? It is reprehensible for the president to defame our justice system, which is not a “joke” nor a “laughingstock” but the envy of the world. Moreover, in the terrorist context, it has proved remarkably efficient in trying and convicting terrorists, and then handing out maximum punishments. The surviving Boston Marathon bombing defendant was convicted in just this way and sentenced to death.

. . . .

Based on today’s tweet, we were right to assume that neither Trump nor Sanders had any idea what he/she was talking about (always a good assumption). We will watch with pride as American justice takes its course — and with horror as Trump continues to wreck havoc from the Oval Office.”

****************************************

Having spent a professional lifetime working on immigration and refugee issues, I can confirm that Trump and his GOP “restrictionist cronies” like Sessions, Miller, and Bannon have managed to transform what used to be “a national consensus that immigrants [and particularly refugees] are a critical source of vitality, invention and international appeal” into a highly partisan and racially-charged attack on the national origins and futures of some of our most productive citizens and residents — those who far more than Trump or his cronies are likely to help us in building a better, safer future for all Americans.

Having worked on all sides of our U.S. Justice System, served as an administrative judge on the trial and appellate levels for more than 21 years, listened to and/or read thousands of accounts of what made people leave their “home countries,” and studied in detail the reasons why some failing countries are “senders” of talented migrants and others, like the U.S., are fortunate enough to be on the “receiving” end, I can say unequivocally that the fairness of our justice system and the overall honsety and integrity of civil servants in the U.S. Government are the primary differences between the “sending” and “receiving” countries, like ours.

As I have observed before, Trump and his cronies are launching what is basically a “Third-World autocratic attack” on our Constitution and our democratic institutions. If they succeed, the immigration “problem” might eventually be “solved” because nobody will want to come here any more. How many people risked their lives trying to get into the former Soviet Union?
Donald Trump, his cronies, and his enablers are and will remain a much greater threat to our safety and Constitutional institutions than any foreign terrorist could ever be. We ignore his dangerous and fundamentally un-American rants at our own peril!
PWS
11-02-17

 

GONZO’S WORLD: THE HILL: Professor Lindsay Muir Harris — Using REAL Data & Facts — Rips Apart Sessions’s “Ignorant” (& TOTALLY INAPPROPRIATE) Anti-Asylum Speech To EOIR!

http://thehill.com/opinion/immigration/355734-sessions-fundamentally-misses-the-mark-on-the-asylum-system

Lindsay writes:

“Attorney General Jeff Sessions delivered remarks to the Executive Office of Immigration Review (EOIR) on Oct. 12, arguing that the U.S. asylum system is overburdened with fraud and abuse. Sessions misrepresented the system, relying on virtually no data to reach his, frankly, ignorant conclusions.

. . . .

Fifth, Sessions suggests that because some individuals who pass credible fear interviews fail to apply for asylum, they are fraudulently seeking asylum. This fails to recognize that individuals who pass a credible fear interview have been released with very little orientation as to what to expect next.

For example, asylum law requires that an official application be filed in immigration court within one year of the asylum seeker’s last entry into the United States. U.S. officials, however, fail to tell individuals who pass a credible fear interview about this deadline.

Having just articulated in detail, to a U.S. official, why they are afraid to return to their home country, many asylum seekers believe they have “applied” for asylum, and some even believe they have been granted upon release.

Several groups filed suit against DHS last June based on the lack of notice of the one year filing deadline given to asylum seekers and also the impossibility of filing because the immigration courts are so backlogged that an applicant often cannot file in open court within a year.

Sessions also neglects to mention that asylum seekers face a crisis in legal representation. According to a national study of cases from 2007-2012, only 37 percent of immigrants were represented in immigration court. Representation can make all the difference. Without representation, asylum seekers lack an understanding of what is happening in their case and may be too fearful to appear without an attorney. Their number one priority, remember, is to avoid being sent back to a place where they face persecution and/or torture or death.

Finally, the asylum process itself is complicated and the I-589 form to apply is only available in English. This is overwhelming for a pro se applicant who lacks the ability to read and write in English.

Attorney General Sessions’ remarks should not be surprising, certainly not to any who are familiar with his anti-immigrant track record. It remains disappointing, however, that the nation’s top law enforcement official should politicize and attempt to skew our vision of the asylum-seeking process. As a nation founded by immigrants fleeing religious persecution, it is profoundly disturbing that the current Attorney General sees fit to an attack on asylum seekers and to undermine America’s history of compassionate protection of refugees.

Professor Lindsay M. Harris is co-director of the Immigration & Human Rights Clinic at the University of the District of Columbia David A. Clarke School of Law.”

****************************************

Go on over to The Hill at the above link and read the rest of Lindsay’s article (containing her points 1-4, which I omitted in this excerpt).

I can confirm that those who have passed the “credible fear” process often mistakenly believe that they “applied for asylum” before the Asylum Office. I also found that few unrepresented respondents understood the difference between required reporting to the DHS Detention Office and reporting to Immigration Court.

Moreover, given the “haste makes waste” procedures applied to recent border arrivals, the addresses reported to EOIR by DHS or entered into the EOIR system were often inaccurate. Sometimes, I could tell they were inaccurate just from my own knowledge of the spelling and location of various streets and jurisdictions in Northern Virginia.  Another time, one of the Arlington Immigration court’s “eagle eyed” Court Clerks spotted that a number of supposed “in absentias” charged to Arlington were really located in the state of  “PA” rather than “VA” which had incorrectly been entered into our system. No wonder these were coming back as “undeliverable!”

Therefore, I would consider Sessions’s claim of a high “no show” rate to be largely bogus until proven otherwise. My experience was that recently arrived women, children, and families from the Northern Triangle appeared well over 90% of the time if they 1) actually understood the reporting requirements, and 2) actually got the Notice of Hearing. Those who were able to obtain lawyers appeared nearly 100% of the time.

This strongly suggests to me that if Sessions really wanted to address problems in Immigration Court he would ditch the knowingly false anti-asylum narratives and instead concentrate on: 1) insuring that everyone who “clears” the credible fear process has his or her Immigration Court hearing scheduled in a location and a manner that gives them the maximum possible access to pro bono legal representation; 2) insuring that appropriate explanations and warnings regarding failure to appear are given in English and Spanish, and 3) a “quality control initiative” with respect to entering addresses at both DHS and EOIR and serving Notices to Appear.

Jeff Sessions also acted totally inappropriately in delivering this highly biased, enforcement-oriented, political address to the EOIR. Although housed within the DOJ, EOIR’s only functions are quasi-judicial — fairly adjudicating cases. In the words of the Third Circuit Court of Appeals in a recent case the function of the Immigration Judiciary is “preserving the rule of law, safeguarding the impartiality of our adjudicatory processes, and ensuring that fairness and objectivity are not usurped by emotion, regardless of the nature of the allegations.” Alimbaev v. Att’y Gen. of U.S.872 F.3d 188, 190 (3rd Cir. 2017).

Consequently, the only appropriate remarks for an Attorney General to make to EOIR and the Immigration Judiciary would be to acknowledge the difficulty of their judicial jobs; thank them for their service; encourage them to continue to render fair, impartial, objective, scholarly, and timely decisions; and explain how he plans to support them by providing more resources for them to do their important jobs. That’s it!!

What is totally inappropriate and probably unethical is for the Attorney General to deliver a “pep talk” to judges spouting the “party line” of one of the parties in interest (the DHS), setting forth inaccurate and unsupported statements of the law, and demeaning the other party to the judicial proceedings — the immigrant respondents and their attorneys.

Although I personally question their ultimate constitutionality under the Due Process Clause, the Attorney General does have two established channels for conveying his views on the law to the EOIR: 1) by incorporating them in regulations issued by the DOJ after public notice and comment; and 2) by “certifying” BIA decisions to himself and thereby establishing his own case precedents which the BIA and Immigration Judges must follow.

Troublesome as these two procedures might be, they do have some glaring differences from “AG speeches and memos.” First, public parties have a right to participate in both the regulatory and the precedent adjudication process, thus insuring that views opposed to those being advanced by the DHS and the Attorney General must be considered and addressed. Second, in both cases, private parties may challenge the results in the independent Article III Courts if they are dissatisfied with the Attorney General’s interpretations. By contrast, the “opposing views” to Session’s anti-asylum screed did not receive “equal time and access” to the judicial audience.

Sessions’s recent disingenuous speech to EOIR was a highly inappropriate effort to improperly influence and bias supposedly impartial quasi-judicial officials by setting forth a “party line” and not very subtilely implying that those who might disagree with him could soon find themselves “out of favor.” That is particularly true when the speech was combined with outrageous discussions of how “performance evaluations” for judges could be revised to contain numerical performance quotes which have little or nothing to do with fairness and due process.

Jeff Sessions quite obviously does not see the U.S. Immigration Courts as an independent judiciary charged with delivering fair and impartial justice to immigrants consistent with the Due Process clause of our Constitution. Rather, he sees Immigration Judges and BIA Appellate Judges as “adjuncts” to DHS enforcement — there primarily to insure that those apprehended by DHS agents or who turn themselves in to the DHS to apply for statutory relief are quickly and unceremoniously removed from the U.S. with the mere veneer, but not the substance, of Due Process.

Due process will not be realized in the U.S. Immigration Courts until they are removed from the DOJ and established as a truly independent Article I court.

PWS

10-31-17

 

 

 

 

“TERRIFIC TRIO” INSPIRES STUDENTS, FIGHTS FOR IMMIGRANT JUSTICE AT UVA LAW IMMIGRATION CLINIC — PLUS EXTRA BONUS: Go Back To School This Fall — Take My “One-Lecture” Class “Basic Asylum Law for Litigators” Right Here!

HERE THEY ARE!

INTRODUCING THE “TERRIFIC TRIO” – DEENA N. SHARUK, TANISHKA V. CRUZ, & RACHEL C. McFARLAND:

FACULTY

Email

dsharuk@law.virginia.edu

Deena N. Sharuk

  • Lecturer
  • Biography
  • Courses

Deena N. Sharuk teaches Immigration Law at the Law School.

Sharuk is currently practicing as an immigration attorney at the Legal Aid Justice Center in Charlottesville, Virginia, where she manages the Virginia Special Immigrant Juvenile Project. She received her B.A. in international relations with a specialization in human rights from Wellesley College. Sharuk received her law degree from Northeastern University School of Law.

After graduation, she worked as a fellow at the American Civil Liberties Union of Massachusetts and later practiced immigration law in Massachusetts and Virginia. Sharuk was recently appointed as a task force core team member to foster a welcoming environment for immigrants and minorities in Charlottesville and Albemarle county. She often presents to the community about changes in immigration law.

EDUCATION

  • JD.


Northeastern University School of Law 


2012





  • BA.


Wellesley College 


2007






 FACULTY

Email

tanishka@justice4all.org

Cell Phone

(434) 529-1811

Tanishka V. Cruz

  • Lecturer
  • Biography
  • Courses

Tanishka V. Cruz is an attorney in solo practice at Cruz Law, a Charlottesville-based immigration and family law firm. She is also an attorney with the Legal Aid Justice Center, where for the past two years she has focused on the management of the Virginia Special Immigrant Juvenile Project, an award-winning collaboration between LAJC and pro bono attorneys across the state. The project has saved more than 150 refugee children from likely deportation.

Cruz earned her B.A. from Temple University and her J.D. from the Drexel University Thomas R. Kline School of Law.

She currently supervises students in the Immigration Law Clinic, which LAJC runs in conjunction with the Law School

EDUCATION

  • JD.


Drexel University Thomas R. Kline School of Law


 2012





  • BA.


Temple University 


2004






FACULTY

Email

rmcfarland@justice4all.org

Rachel C. McFarland

  • Lecturer
  • Biography
  • Courses

Rachel C. McFarland is an attorney at Legal Aid Justice Center in Charlottesville. She focuses on cases in public and subsidized housing, unpaid wages for migrant workers and immigration.

McFarland earned her B.A. from the University of Richmond in 2009, where she majored in Latin American and Iberian studies, and rhetoric and communication studies. She received her J.D. from Georgetown University Law Center in 2015.

While at Georgetown, McFarland participated in the asylum clinic and received a certificate in refugees and humanitarian emergencies.

EDUCATION

  • JD.


Georgetown University Law Center 


2015





  • BA.


University of Richmond


 2009






 

*************************************************

Wow, what a totally impressive and multi-talented team! All three of these amazing lawyers also work at the Legal Aid and Justice Center in Charlottesville, VA. They tirelessly pursue justice for our most vulnerable! They teach their clinical students “real life” client interview, case preparation, organization, time management, negotiation, and litigation skills while giving them a solid background in probably the most important and dynamic area in current American Law: U.S. Immigration Law.

 

They do it all with energy, enthusiasm, good humor, and inspiring teamwork that will help their students be successful in all areas of life and law while contributing to the American Justice system.

 

I am of course particularly proud of Rachel McFarland who was one of my wonderful Refugee Law and Policy students at Georgetown Law and has gone on to “do great things” and help others as a “charter member” of the “New Due Process Army.” Way to use that “RLP” training and experience, Rachel! I know that my good friend and colleague Professor Andy Schoenholtz who runs the Georgetown Law Certificate in Refugees and Humanitarian Emergencies program is also delighted at how Rachel has chosen to use her specialized training!

Thanks again, Rachel, for “making your professors proud” of your dedication and achievements. I hope that your students will do the same for you (and your terrific colleagues)!

********************************************

For those of you who want to replicate the class experience in Charlottesville last Wednesday, here is the complete text of my class presentation: “BASIC ASYLUM LAW FOR LITIGATORS!”

BASIC ASYLUM LAW FOR LITIGATORS-2SPACE

BASIC ASYLUM LAW FOR LITIGATORS

By Paul Wickham Schmidt

United States Immigration Judge (Retired)

UVA LAW IMMIGRATON CLINIC

Charlottesville, VA

October 25, 2017

 

 

BASIC ASYLUM LAW FOR LITIGATORS

 

OUTLINE

 

I. INTRODUCTION

II. WHO IS A REFUGEE?

Refugee Definition

Standard of Proof

What Is Persecution?

Nexus

III. PARTICULAR SOCIAL GROUP

The Three Requirements

Success Stories

The Usual Losers

What Can Go Wrong?

A Few Practical Tips on PSG

IV. PRACTICAL TIPS FOR PRESENTNG AN ASYLUM CASE IN IMMIGRATION COURT

V. CONCLUSION

 

 

 

 

 

I. INTRODUCTION

 

Good afternoon, and thanks for attending. As a former U.S. Immigration Judge at both the trial and appellate levels, and someone who has spent over four decades working in the field of immigration at all levels, I want to personally thank you for what you are doing.

 

Welcome to the “New Due Process Army” and our critical mission of forcing the U.S. Immigration Court system to live up to its unfulfilled promise of “guaranteeing fairness and due process for all.” Nothing is more important to achieving that mission than providing effective representation to individuals at the “retail level” of the system – the U.S. Immigration Courts.

 

There is a due process crisis going on in our U.S. Immigration Court system that threatens the integrity and the functioning of our entire U.S. justice system. And, the biggest need in the Immigration Courts is for effective legal representation of individuals seeking, expecting, and deserving justice in Immigration Court. Never has the need for pro bono attorneys been greater than it is now!

 

I’m truly delighted to be reunited with my friend and former student from Refugee Law & Policy at Georgetown Law, the wonderful Rachel McFarland. I am absolutely thrilled that Rachel has chosen to use her amazing talents to help those most in need and to be a teacher and an inspirational role model for others in the New Due Process Army. In addition to being brilliant and dedicated, Rachel exudes that most important quality for success in law and life: she is just one heck of a nice person! The same, of course, is true for your amazing Clinical Professor Deena Sharuk and her colleague Tanishka Cruz Thank you Deena, Tanishka, and Rachel, for all you are doing! All of you in this room truly represent “Due Process In Action.”

 

As all of you realize, our justice system is only as strong as its weakest link. If we fail in our responsibility to deliver fairness and due process to the most vulnerable individuals at the “retail level” of our system, then eventually our entire system will fail.

 

Our Government is going to remove those who lose their cases to countries where some of them undoubtedly will suffer extortion, rape, torture, forced induction into gangs, and even death. Before we return individuals to such possible fates, it is critical that they have a chance to be fully and fairly heard on their claims for protection and that they fully understand and have explained to them the reasons why our country is unwilling or unable to protect them. Neither of those things is going to happen without effective representation.

 

We should always keep in mind that contrary to the false impression given by some pundits and immigration “hard liners,” including, sadly and most recently our Attorney General, losing an asylum case means neither that the person is committing fraud nor that he or she does not have a legitimate fear of return. In most cases, it merely means that the dangers the person will face upon return do not fall within our somewhat convoluted asylum system. And, as a country, we have chosen not to exercise our discretion to grant temporary shelter to such individuals through Temporary Protected Status, Deferred Enforced Departure, or prosecutorial discretion (“PD”). In other words, we are returning them knowing that the effect might well be life threatening or even fatal in many cases.

 

I also predict that you will make a positive difference in the development of the law. The well-prepared and articulate arguments that you make in behalf of migrants are going to get attention and consideration from judges at all levels far beyond those presented by unrepresented individuals who can’t even speak English. It’s simply a fact of life. And, if you can win these cases, everything else you do in the law will be a “piece of cake.” I guarantee it.

 

Obviously, in representing your clients it is important to be polite, professional, and to let the excellence of your preparation, research, and arguments speak for you. In an overwhelmed system, judges are particularly grateful for all the help they can get. However, they are also under excruciating pressure to complete cases, particularly detained cases. So it is important to clearly identify your issues, focus your examination, and make sure that your “phone books” of evidence are properly organized and that there is a “road map” to direct the Immigration Judge and the Assistant Chief Counsel to the key points. You want to help the judge, and your opponent, get to a “comfort zone” where he or she can feel comfortable granting, or not opposing or appealing, relief.

 

I do want to offer one additional important piece of advice up front. That is to make sure to ask your client if her or his parents or grandparents, whether living or dead, are or were U.S. citizens. Citizenship is jurisdictional in Immigration Court, and occasionally we do come across individuals with valid but previously undeveloped claims for U.S. citizenship. You definitely want to find out about that sooner, rather than later, in the process.

My presentation today will be divided into three sections. First, we will go over the basic refugee definition and some of its ramifications. Second, I will provide some basic information about particular social group or “PSG” claims. Third, I will give you fourteen practical pointers for effectively presenting asylum cases in Immigration Court.

 

Please feel free to ask questions as we go along, or save them until the end.

 

II.        WHO IS A REFUGEE?

 

In this section, I will first discuss the INA’s definition of “refugee.” Second, I will talk about the standard of proof. Third, we will discuss the meaning of the undefined term “persecution.” I will conclude this section with a discussion of the key concept of “nexus.”

A.        Refugee Definition

 

An “asylee” under U.S. law is basically an individual who satisfies the “refugee” definition, but who is in the U.S. or at our border in a different status, or with no status at all. Most of your clients will fall in the latter category.

The definition of “refugee” is set forth in section 101(a)(42) of the INA, 8 U.S.C. § 1101(a)(42). There are four basic elements:

  1. Generally, outside the country of nationality (not usually an issue in border cases);
  2. Unwilling or unable to return (failure of state protection);
  3. Because of persecution (undefined) or a well founded fear of persecution;
  4. On account of race, religion, nationality, membership in a particular social group, or political opinion (“nexus”).

 

There are some important exclusions to the refugee definition, the most frequent ones being the one-year filing deadline for asylum, those who have committed serious nonpolitical crimes outside the U.S. or particularly serious crimes in the U.S., persecutors of others, those who have rendered material support to a terrorist organizations, and those who are firmly resettled in another country. I won’t be going into these in detail today, but you should know that they are there, and I’d be happy to take questions on them. The ground most likely to come up in your cases is the one relating to individuals who have committed crimes.

Some individuals who are ineligible for asylum might still be eligible to receive withholding of removal under section 243(b) of the INA, 8 U.S.C., § 1253(b) or withholding of removal under the Convention Against Torture (“CAT”). And, everyone can potentially seek so-called “deferral of removal” under the CAT.

Also, please note that because of the requirement of a “nexus” to a “protected ground” not all types of harm trigger protection. In particular, crimes, wars, random violence, natural disasters, and personal vengeance or retribution do not automatically qualify individuals for refugee status, although “persecution“ within the meaning of the INA and the Convention certainly can sometimes occur in these contexts. However, some of these circumstances that fail to result in refugee protection because of the “nexus” requirement might be covered by the CAT, which has no nexus requirement.

The source of the “refugee” definition is he Refugee Act of 1980 which codified and implemented the U.N Convention and Protocol on the Status of Refugees to which the U.S. adhered in 1968. There are, however, some differences between the U.S. definition and the Convention definition, which I won’t go into today. But, again, you should be aware they exist, since some international or U.N. interpretations of the definition might be inapplicable under U.S. law.

B.        Standard of Proof

 

The standard of proof in asylum cases was established by the Supreme Court in 1987 in INS v. Cardoza-Fonseca, 480 U.S. 421 (1987). In asylum cases, a “well-founded” fear is something far less than a probability. It is an “objectively reasonable fear” or the type of fear that a “reasonable person” would have under the circumstances. Most courts and authorities have adopted the “10% chance” example set forth in Justice Stevens’s plurality opinion in Cardoza.

The BIA’s implementation of Cardoza, the 1987 precedent Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987), makes the point that the persecution can be “significantly less than probable.” Your challenge as lawyers will be to get judges at all levels of our system to actually apply the generous Cardoza-Mogharrabi standard rather than just mouthing it. Sadly, the latter still happens too often, in my opinion.

A different and higher “more likely than not” standard applies to withholding of removal under the INA and to withholding and deferral of removal under the CAT. One great tool for satisfying the standard of proof for asylum or withholding under the Act is the rebuttable regulatory presumption of future persecution arising out of past persecution set forth in 8 C.F.R. 1208.13. This is a really important regulation that you should basically learn “by heart.” I will reference it again in the “practical tips” section of this presentation.

Withholding and CAT are more limited forms of relief than asylum. While they usually provide work authorization, they do not lead to green card status, allow the applicants to bring relatives, or travel abroad. They are also easier to revoke if conditions change. Nevertheless, there is one major advantage to withholding and CAT: they save your client’s life. Sometimes, that’s the best you can do. And, fundamentally, saving lives is really what this business is all about.

C.        What Is Persecution?

 

Remarkably, neither the Convention nor the INA defines the term “persecution.” Consequently, U.S. Immigration Judges, the Board of Immigration Appeals (“BIA”), and the U.S. Courts of Appeals are constantly referring to certain types of harm as “mere discrimination or harassment” not “rising to the level” of “persecution.” Often these highly subjective conclusions seem to be more in the mind of the judicial beholder than in the record or the law.

In the absence of a firm definition, I have found the most useful practical guidance to be in an opinion by the famous, or infamous, Judge Richard Posner, who recently retired from the Seventh Circuit Court of Appeals, in a 2011 case Stanojkova v. Holder, 645 F.3d 943, 947-48 (7th Cir. 2011). Judge Posner gave three examples.

“The three forms are discrimination, harassment, and persecution. The first [discrimination] refers to unequal treatment, and is illustrated historically by India’s caste system and the Jim Crow laws in the southern U.S. states. Discrimination normally does not involve the application of physical force, except as punishment for violation of the discriminatory laws.”

Second: “Harassment involves targeting members of a specified group for adverse treatment, but without the application of significant physical force. Had [police] furious at [the respondent’s] being soft on Albanians followed his taxi (he was a taxicab driver in Macedonia) and ticketed him whenever he exceeded the speed limit by one mile per hour, that would be an example of harassment. A common form of sexual harassment is pestering a subordinate for a date or making lewd comments on her appearance, or perhaps hugging her, which is physical but generally not violent.”

Third: “Persecution involves, we suggest, the use of significant physical force against a person’s body, or the infliction of comparable physical harm without direct application of force (locking a person in a cell and starving him would be an example), or nonphysical harm of equal gravity—that last qualification is important because refusing to allow a person to practice his religion is a common form of persecution even though the only harm it causes is psychological. Another example of persecution that does not involve actual physical contact is a credible threat to inflict grave physical harm, as in pointing a gun at a person’s head and pulling the trigger but unbeknownst to the victim the gun is not loaded.”

These definitions are, of course, not binding outside the Seventh Circuit. But, I find them to be practical, usable definitions that I certainly found helpful in making asylum decisions in the Fourth and other circuits.

D.        Nexus

 

The concept of “nexus” or “on account of” has become critical in asylum adjudication. Indeed, that is where many of your upcoming battles will be focused. In many cases these days the DHS will concede the “particular social group” (“PSG”) and just argue that the harm has no “nexus” to that PSG or any other protected ground.

The REAL ID Act amended the INA to require that for an asylum applicant to prove ”nexus” or “on account” of any protected ground, he or she must show that the protected ground is “at least one central reason” for the feared persecution. INA § 208(b)(1)(B)(i), 8 U.S.C. § 1208(b)(1)(B)(i) While this did not eliminate the frequently encountered “mixed motive” situation, it was intended to “tighten up” prior case law that had referred to the persecution as stemming “in whole or in part” from a protected ground.

The BIA ruled in Matter of C-T-L-, 25 I & N Dec. 341 (BIA 2010) that the “one central reason” test also applies to nexus in the withholding of removal context. However, the Ninth Circuit rejected the BIA’s interpretation in Barajas-Romero v. Lynch, 846 F.3d 351 (BIA 2014), maintaining that the more generous “in whole or in part” test should continue to apply to withholding cases under the INA. To my knowledge, the Fourth Circuit has not directly addressed the issue. So, I believe that C-T-L- would apply in the Immigration Courts in the Fourth Circuit at present.

Unfortunately, the BIA has given a very narrow reading to the “one central reason” test. In a recent precedent, Matter of L-E-A-, 27 I &N Dec. 40 (BIA 2017), the respondent was a member of a family social group. He clearly was targeted by a cartel in Mexico because he was a member of a family that owned a grocery store. In other words, “but for” the respondent’s family membership, he would not have been targeted by the gang.

Nevertheless, instead of granting the case, the BIA looked beyond the initial causation. The BIA found that “the respondent was targeted only as a means to achieve the cartel’s objective to increase its profits by selling drugs in the store owned by his father. Therefore the cartel’s motive to increase its profits by selling contraband in the store was one central reason for its actions against the respondent. Any motive to harm the respondent because he was a member of his family was, at most, incidental.” 27 I&N Dec. at 46 (citations omitted). Accordingly, the BIA denied the case.

Unfortunately, the BIA cited and relied upon an analysis of nexus in a similar case by the Fifth Circuit in Ramirez-Mejia v. Lynch, 794 F.3d 485n (5th Cir. 2015). The BIA, and to some extent the Fifth Circuit, have essentially used the “nexus” requirement to “squeeze the life” out of the family PSG. We can see that the normal rules of legal causation have been suspended. The respondent would not have been targeted by the cartel had he not belonged to this particular family. Yet, the BIA searched for and found an “overriding motive” that did not relate to a protected ground and determined that to be the “central reason” and the family PSG to be “tangential.”

What kind of case could succeed under L-E-A-? Well, perhaps not wanting to give anyone any practical ideas on how to qualify, the BIA searched history and came up with the execution of the Romanov family by the Bolsheviks as an example of a where family was a “central reason” for the persecution. So, maybe if the respondent’s father were a major donor to a political party that opposed cartels, a member of a religion that opposed drugs, or a member of a hated minority group, the respondent’s family membership could have been “at least one central reason.”

But the Romanov family case would have been grantable on actual or imputed political opinion grounds. The other examples I gave would have been more easily grantable on actual or implied political opinion, religion, or nationality grounds. So the BIA appears designed to make the family PSG ground largely superfluous.

This leaves you as litigators in a tricky situation. The IJ will be bound by L-E-A,

and the BIA is unlikely to retreat from L-E-A-. On the other hand, the Fourth Circuit might not go along with the L-E-A- view, although Judge Wilkins appeared anxious to endorse L-E-A- in his separate concurring opinion in Valasquez v. Sessions, 866 F.3d 188 (4th Cir. 2017).

 

To my knowledge, L-E-A- has not actually been considered and endorsed by any circuit to date. To me, it appears to be inconsistent with some of the existing family-based nexus case law in the Fourth and Ninth Circuits. See, e.g., Zavaleta-Policiano v. Sessions, 873 F.3d 241 (4th Cir. 2017) (slamming BIA for misapplying concept of “mixed motive”). So, I wouldn’t be shocked if a “circuit split” eventually develops and the issue finally wends its way to the Supreme Court. Who knows, maybe one of you will be arguing it.

 

In any event, in my view, it is too early for you to “waive” strong nexus arguments even if they will be rejected under L-E-A-. On the other hand, that’s not likely to solve your client’s currentproblems.

So, what can you do? First, look for legitimate ways to distinguish L-E-A-. Assume that the DHS will “pull out the stops” in arguing that everything but family was the central reason –greed, lust, crime, random violence, personal vengeance, envy, resentment, etc. Look for evidence in the record that the dispute really was, to a major extent, about family, rather than one of the non-qualifying grounds.

Second, look for some qualifying non-family PSG or a “more conventional” religious, nationality, racial, or political motive.

Third, consider the possibility of CAT protection. The advocacy community probably underutilizes CAT. CAT doesn’t have a specific nexus requirement and often can be proved by extensive documentary or expert evidence, both UVA Clinic specialties. Sure, the standard of proof is high and CAT is a lesser form of relief than asylum. But, it saves your client’s life! And, if the nexus law changes in your favor, you can always file a motion to reopen to re-apply for asylum under the changed law.

This is an area of the law where creativity, preparation, and persistence often pay off in the long run. So, don’t give up. Keep on fighting for a reasonable and proper application of the “refugee” definition and for the rights of your clients.

III.      PARTICULAR SOCIAL GROUP

 

In this section I will talk about the three basic requirements for a PSG, the success stories, the usual failures, things that can go wrong, and offer you a few practice pointers directly related to PSG claims.

A.        The Three Requirements

 

The BIA has established three requirements for a PSG.

  1. Immutability or fundamental to identity;
  2. Particularity; and
  3. Social distinction.

 

These three requirements are usually used to deny rather than grant protection. Indeed, most of the BIA’s recent precedents on PSG are rendered in a decidedly negative context.

There was a time about two decades ago when many of us, including a number of BIA Members, thought that immutability or fundamental to identity was the sole factor. But, following our departure, the BIA attached the additional requirements of “particularity” and “social visibility” now renamed “social distinction” to narrow the definition and facilitate denials, particularly of gang-based PSG claims.

The particularity and social distinction requirements basically work like a “scissors” to cut off claims. As you make your definition more specific to meet the “particularity” requirement it often will become so narrow and restrictive that it fails to satisfy “social distinction.” On the other hand, as your proposed PSG becomes more socially distinct, it’s likely that it will become more expansive and generic so that the BIA will find a lack of “particularity.”

While the UNHCR and many advocacy groups have argued for a return of immutability as the basic requirement with “social distinction” as an alternative, not an additional requirement, the BIA recently reaffirmed its “three criteria” approach. These cases, Matter of M-E-V-G-, 26 I &N Dec. 227 (BIA 2014) and its companion case Matter of W-E-G-, 26 I &N Dec. 208 (BIA 2014), are “must reads” for anyone doing PSG work.

About the only bright spot for advocates was that the BIA in M-E-V-G– rejected the commonly held view that no gang-based case could ever succeed. The BIA said that its decisions “should not be read as a blanket rejection of all factual scenarios involving gangs. Social group determinations are made on a case-by-case basis. For example, a factual scenario in which gangs are targeting homosexuals may support a particular social group claim. While persecution on account of a protected ground cannot be inferred merely from acts of random violence and the existence of civil strife, it is clear that persecution on account of a protected ground may occur during periods of civil strife if the victim is targeted on account of a protected ground.” 26 I&N Dec. at 251 (citations omitted).

In other words, the Board is asking for evidence intensive case-by-case adjudications of various proposed PSGs. Leaving aside the fairness of doing this in a context where we know that most applicants will be detained and unrepresented, I cannot think of an organization better suited to give the BIA what it asked for than the UVA Clinic – you guys!

B. Success Stories

There are four basic groups that have been relatively successful in establishing PSG claims.

  1. LGBT individuals under Matter of Toboso-Alfonso, 20 I&N Dec. 819 (BIA 1990);
  2. Women who fear or suffered female genital mutilation (“FGM”) under my decision in Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996);
  3. Victims of domestic violence under Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014); and
  4. Family under the Fourth Circuit’s decision in Crespin-Valladares v. Holder, 632 F.3d 117 (4th 2011), a case in which I was the Immigration Judge and Jones Day was pro bono counsel.

You should note that the first three of these success stories had something in common: strong support across a wide spectrum of the political universe. In fact, in LGBT, FGM, and domestic violence cases the DHS eventually changed its position so as to not oppose the recognition of the PSG. This, in turn, either facilitated or perhaps effectively forced the BIA to recognize the PSG in a precedent.

Family, on the other hand, has generally not developed the same type of political consensus as a PSG for asylum purposes. I have already discussed in detail how notwithstanding the clear logic of family as a PSG, the BIA uses a highly restrictive reading of the “nexus” requirement that prevents many family groups from qualifying for protection.

There are two additional important points established by Kasinga. First, the respondent does not have to establish that the persecutor acted or will act with “malevolent intent.” Persecution may be established even where the persecutor was inflicting the harm with the intent to “help” or “treat” the respondent. This comes up frequently in connection with LGBT claims.

Second, Kasinga holds that to justify a discretionary denial of asylum for a respondent who otherwise meets all of the statutory requirements, the adverse factors must be “egregious” so as to outweigh the likely danger of persecution.

You are likely to find a number of cases involving LGBT individuals, domestic violence, and family. In the Arlington Immigration Court during my tenure these cases succeeded at an extremely high rate, so much so that many of them went on my “short docket.” However, that was then and this is now.  As they say, “There’s a new sheriff in town and, unfortunately in my view, he looks a lot like the infamous “Sheriff Joe.”

Finally, there are some “up and comer” PSG’s that have had success in some of the circuits and might eventually gain widespread acceptance. Among these are witnesses, landowners, and women subjected to forced marriages. The latter often can more successfully be presented under the domestic violence category. The Fourth Circuit actually has recognized “former gang members” as a potential PSG, although many such individuals will have difficulties under the criminal exclusions from the refugee definition. Martinez v. Holder, 740 F.3d 902 (4th Cir. 2014).

C. The Usual Losers

PSGs that don’t fit any of the categories I just mentioned are usually “losers.” Chief among the “usual losers” are victims of crime other than domestic violence, informants, extortion victims, and those resisting gang recruitment. You’ll probably see a fair number of such cases. Your challenge will be how to present them in a way that overcomes the negative connotations normally associated with such claims.

D. What Can Go Wrong?

Lots of things can go wrong with a PSG case. First, there is the issue of “circularity.” Generally, a PSG cannot be defined in terms of itself. For example “victims of crime” would generally be a “circular” social group.

An easy test is to use your proposed PSG in a simple sentence: “This respondent was harmed to overcome the characteristic of being _________. If you can’t say with a straight face in open court, don’t use it. For example, “this respondent was raped to overcome her characteristic of being a victim of rape” isn’t going to make it as a PSG.

We’ve already talked about how PSG claims can be attacked by denying the nexus. There are also the old favorites of lack of credibility or corroboration. Then, there is failure to meet the one-year filing deadline, no failure of state protection, reasonably available internal relocation, and fundamentally changed country conditions.

That’s why if you’re considering a PSG claim, it’s always wise to have “Plan B.” The problem today, however, is that the Administration has restricted or limited many of the “Plans B.” For example, until recently, the number one “Plan B” was to request prosecutorial discretion (“PD”) from the Assistant Chief Counsel if the respondent had sympathetic humanitarian factors, a clean criminal record, and strong ties to the U.S. However, for all practical purposes, this Administration has eliminated PD.

Nevertheless, its always worthwhile to think about whether things like Wilberforce Act treatment for certain unaccompanied juveniles, Special Immigrant Juvenile Status, “T” visas for trafficking victims, “U” visas for victims of crime, or benefits under the Violence Against Women Act (“VAWA”) might be realistic possibilities for your client.

E. A Few Practical Tips on PSG

I’m going to close this section by offering you a few practical tips on presenting PSG cases that will also tie into my next major section.

First, think “25 words or fewer.” Just like the old boxtop contests from my youth. There are few, if any, known examples of success using lengthy, convoluted social group definitions.

 

Second, remember folks, it isn’t “making sausages.” The definition that goes in must be the same one that comes out the other end. Social groups that “morph” during the hearing just have no chance.

 

Third, be prepared to explain how your proposed particular social group meets the current BIA criteria of immutability, particularity, and social distinction, formerly known as “social visibility.”

 

Fourth, make sure that your respondent is actually a member of the particular social group you propose. You would be surprised at the number of counsel who propose a particular social group definition and then fail to offer proof that their client actually fits within that group.

 

Fifth, as I just mentioned, check your particular social group for “circularity.”

Sixth, and finally, be prepared for an onslaught of other arguments against your case, the chief of which probably will be “no nexus.” Normally, the DHS will “pull out all the stops” to prevent the recognition of a new PSG.

IV. PRACTICAL TIPS FOR PRESENTING AN ASYLUM CASE IN IMMIGRATION COURT

You should all have received a copy of my comprehensive three-page treatise on asylum law entitled “Practical Tips For Presenting an Asylum Case In Immigration Court,” Feb. 2017 Revised Edition. I’m going to quickly take you through the fourteen practical tips outlined there.

My first tip is, “Read a Good Book.” My strong recommendation is the one that has always been at the top of the Immigration Court Best Seller List: Title 8 of the Code of Federal Regulations, 2017 edition.

 

Specifically, I invite your attention to Chapter 1208, which contains the seeds of all winning theories of asylum law, past, present, and future. It will also give you gems like how to shift the burden of proof to the DHS and how to win your case even if your client does not presently have a well-founded fear of persecution.

 

Second, “Get Real.” The REAL ID Act, P.L. 109-13, 119 Stat. 231 (2005), deals with credibility and burden of proof issues in asylum and other cases and applies to applications “made” on or after May 11, 2005, which will be all of your cases. Read it and decide how it can help you and how you can respond to DHS arguments.

 

Third, “Know One When You See One.” The one-year filing requirement of section 208(a)(2)(B) of the INA bars asylum in some cases. Your burden of proof on the one-year filing issue is very high: “clear and convincing evidence.” Judicial review might be limited. But, there are exceptions. Read the statute and the regulations at 8 C.F.R. § 1208.4 to find out how the filing requirement works and what arguments might be made to preserve a late asylum application. Remember that the one-year requirement does not apply to withholding of removal under the INA or to CAT applications.

 

At the beginning of each asylum case, I asked the parties to identify the issues. Respondents’ attorneys invariably told me about past persecution, future persecution, nexus, gender-based persecution, exceptions to the one year filing deadline, weird social groups, and so forth. The issue they sometimes fail to identify is the one that’s always first on my list. What is it?

 

 

That’s right, credibility, is the key issue in almost all asylum litigation. So, my fourth rule is “Play To Tell the Truth.” You must understand what goes into making credibility determinations and why the role of the Immigration Judge is so critical. Often, adverse credibility determinations are difficult to overturn on appeal. It’s all about deference.

 

But, credible testimony might not be enough to win your case. That’s why my fifth rule is “Don’t Believe Everything You Read.” Both appellate and trial court decisions often recite rote quotations about asylum being granted solely on the basis of credible testimony.

However, to give your client the best chance of winning his or her asylum case in immigration Court, under the law applicable in most circuits, you’re likely to need a combination of credible testimony and reasonably available corroborating evidence. Read Matter of S-M-J-, 21 I&N Dec. 722 (BIA 1997), largely codified by REAL ID, and find out what it really takes to win an asylum case in most Immigration Court.

 

In this respect, you should remember my corollary sixth rule “Paper Your Case.” According to Fourth Circuit precedent, even a proper adverse credibility ruling against your client might not be enough for an Immigration Judge to deny the asylum claim. The Judge must still examine the record as a whole, including all of the documentation supporting the claim, to determine whether independent documentary evidence establishes eligibility for asylum. Read Camara v. Ashcroft, 378 F.3d 361 (4th Cir. 2004) and discover how the power of independent documentary evidence can overcome even a sustainable adverse credibility finding. Also, remember that the REAL ID Act directs Immigration Judges to consider “the totality of the circumstances, and all relevant factors.”

 

“Read Your Paper” is my seventh important rule. You and your client are responsible for all the documentation you present in your case. Nothing will give you nightmares faster than having a client present false or fraudulent documentation to the Immigration Court. In my experience, I’ve had very few attorneys able to dig out of that hole. So, don’t let this happen to you.

 

My eighth rule is “Pile it On.” Sometimes, as demonstrated in one of my very favorite cases Matter of O-Z- & I-Z-, 22 I&N Dec. 23 (BIA 1998), reaffirmed in Matter of L-K-, 23 I&N Dec. 677, 683 (BIA 2004), you will be able to take a series of events happening to your respondent, his or her family, or close associates, none of which individually perhaps rises to the level of persecution, and combine them to win for your client.

 

My ninth rule is “Don’t Get Caught by the Devil.” The devil is in the details. If you don’t find that devil, the DHS Assistant Chief Counsel almost certainly will, and you will burn. Also, make sure to put your client at ease by carefully explaining the process and by going over the direct and cross-examinations in advance. Remember the cultural and language barriers that can sometimes interfere with effective presentation of your case.

 

I found the DHS Assistant Chief Counsel in Arlington were all very nice folks. They were also smart, knowledgeable, well prepared, and ready to vigorously litigate their client’s positions. They handled more trials in a year than most litigators do in a lifetime. So, beware and be prepared. You would also be wise to contact the Assistant Chief Counsel in advance of any merits hearing to discuss ways of narrowing the issues and possible “Plans B.”

 

My tenth rule is “Know Your Geography.” Not all Immigration Courts and Circuit Courts of Appeals are located on the West Coast. The BIA certainly is not. You must know and deal with the law in the jurisdiction where your case actually is located, not in the one you might wish it were located.

 

For example, the Arlington Immigration Court is in Crystal City. That is in Virginia, which is not presently part of the Ninth Circuit.

 

This is something that I once had trouble with, coming to the Arlington Court from a job where the majority of asylum cases arose in the Ninth Circuit. But, I got over it, and so can you.

 

My eleventh rule is to “Get Physical.”   In defining persecution, some Circuits have emphasized “the infliction or threat of death, torture, or injury to one’s person or freedom.” See, e.g., Niang v. Gonzales, 492 F.3d 505 (4th Cir. 2007). While the Circuits and the BIA have also recognized non-physical threats and harm, your strongest case probably will be to emphasize the physical aspects of the harm where they exist. Mirisawo v. Holder, 599 F.3d 391 (4th Cir. 2010); Matter of T-Z-, 24 I & N Dec. 163 (BIA 2007).

 

I particularly recommend the Fourth Circuit’s decision in Crespin-Valladares v. Holder, 632 F.3d 117 (4th Cir. 2011), which found that the BIA erred in rejecting my conclusion that “unrebutted evidence of death threats against [the respondent] and his family members, combined with the MS-13’s penchant for extracting vengeance against cooperating witnesses, gave rise to a reasonable fear of future persecution.” In other words, I was right, and the BIA was wrong. But, who’s keeping track?

 

My twelfth rule is “Practice, Practice, Practice.” The Immigration Court Practice Manual, available online at the EOIR web site http://www.usdoj.gov/eoir/vll/OCIJPracManual/ocij_page1.htmwas effective July 1, 2008, and replaced all prior local rules. All filings with the Immigration Court must comply with the deadlines and formats established in this Practice Manual. The Practice Manual has a very helpful index, and it covers just about everything you will ever want to know about practice before the Immigration Courts. It contains useful appendices that give you contact information and tell you how to format and cite documents for filing in Immigration Court. Best of all, it’s applicable nationwide, so you can use what you learn in all Immigration Courts.

 

My thirteenth, rule is “It’s Always Wise to Have ‘Plan B.’” As I have pointed out, asylum litigation has many variables and opportunities for a claim to “go south.” Therefore, it is prudent to have a “Plan B” (alternative) in mind.

 

Among the “Plans B” that regularly came up in Arlington were: prosecutorial discretion (“PD”), Special Rule Cancellation of Removal (“NACARA”), Temporary Protected Status (“TPS”), non-Lawful Permanent Resident Cancellation of Removal (“EOIR 42-B”), Deferred Action for Childhood Arrivals (“DACA”), Special Immigrant Juvenile (“SIJ”) status, I-130 petition with a “stateside waiver” (“I-601A”), “Wilberforce Act” special processing for unaccompanied children (“UACs”), T nonimmigrant status (for certain human trafficking victims), and U nonimmigrant status (for certain victims of crime). In my experience, many, perhaps the majority, of the “happy outcome” asylum cases coming before me were resolved on a basis “OTA,” that is “other than asylum.”

 

But, unfortunately in my view, the “Plan B” world is rapidly changing. So, please listen very carefully to the caveat that comes next.

 

Fourteenth, hope for the best, but prepare for the worst. As some have said “there’s a new Sheriff in town,” and he’s announced a “maximum immigration enforcement” program targeting anyonewho has had any run-in with the law, whether convicted or not. He also intends to detain all undocumented border crossers or applicants for admission at the border. So, you can expect morearrests, more detention (particularly in far-away, inconvenient locations like, for instance, Farmville, VA), more bond hearings, more credible and reasonable fear reviews, more pressure to move cases even faster, and an even higher stress level in Immigration Court.

 

The “Plans B” involving discretion on the part of the Assistant Chief Counsel, like PD, DACA, and stateside processing, and even waiving appeal from grants of relief, are likely to disappear in the near future, if they have not already. In many cases, litigating up through the BIA and into the Article III Federal Courts (where the judges are, of course, bound to follow the law but not necessarily to accept the President’s or the Attorney General’s interpretation of it) might become your best, and perhaps only, “Plan B.”

V. CONCLUSION

 

In conclusion, I have told you about the basic elements of the refugee definition and how it is used in adjudicating asylum cases. I have also discussed the requirements and the pros and cons of the PSG protected ground. And, I have shared with you some of my practical tips for presenting an asylum case in U.S. Immigration Court.

 

Obviously, I can’t make you an immigration litigation expert in in afternoon. But, I trust that I have given you the basic tools to effectively represent your clients in Immigration Court. I have also given you some sources that you can consult for relevant information in developing your litigation strategy and your case.

 

I encourage you to read my blog, immigrationcourtside.com, which covers many recent developments in the U.S. Immigration Courts. As you come up with victories, defeats, good ideas, appalling situations, or anything else you think should be made more widely available, please feel free to submit them to me for publication. I also welcome first-hand accounts of how the system is, or isn’t, working at the “retail level.”

 

Thanks again for joining the New Due Process Army and undertaking this critical mission on behalf of the U.S. Constitution and all it stands for! Thanks for what you are doing for America, our system of justice, and the most vulnerable individuals who depend on that system for due process and justice.

 

Thanks for listening, good luck, do great things, and Due Process Forever! I’d be pleased to answer any additional questions.

 

 

(10-30-17)

© Paul Wickham Schmidt 2017. All Rights Reserved. 

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PWS

10-30-17

 

 

 

 

🦃🦃🦃 CELEBRATE THANKSGIVING WITH THE ASYLUM SEEKER ASSISTANCE PROJECT (“ASAP”) & THEIR FIRST ANNUAL THANKSGIVING CELEBRATION!

Join NLG and ASAP’s First Annual Thanksgiving Celebration!

by No Lost Generation and Asylum Seeker Assistance Project

On Saturday, November 11th, 2017, No Lost Generation will be joined by the Asylum Seeker Assistance Project (ASAP) to host a family-friendly Thanksgiving-themed dinner event at Georgetown University from 4-7PM. ASAP clients, volunteers, students, supporters, and advocates will be in attendance. Food will include both traditional American Thanksgiving items and international fare. Event program will begin at 5PM. A children’s area with crafts and games will be provided. Garage parking is available. Ticket purchase will automatically enter guests into a raffle prize drawing. Join us as we laugh too hard, eat too much, and reflect on the goodness in our lives.

Any questions or accommodation requests related to a disability should be made by November 8th to Nick Gavio at njg39@georgetown.edu. A good faith effort will be made to fulfill requests made after November 8th.

TAGS

Organizer: No Lost Generation and Asylum Seeker Assistance Project

Organizer of Join NLG and ASAP’s First Annual Thanksgiving Celebration!

The Asylum Seekers Assistance Project (ASAP) is the first and only nonprofit dedicated to serving the estimated 25,000 asylum seekers in the D.C. Metro region. An asylum seeker is a person who applies for refugee status after they enter the U.S. Our mission is to support the safety, stability, and economic security of asylum seekers and their families. Our goal is to create a scalable safety net to ensure that all persons fleeing persecution are given the chance to contribute to their new community and reach their full potential.

Established as a task of the U.S. State Department, No Lost Generation (NLG) is a university student movement that aims to support those who have been affected by the global refugee crisis. NLG is present at more than 50 colleges and universities across the United States. NLG chapters from Georgetown, George Washington, and American University will be represented at this event.

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Join NLG and ASAP’s First Annual Thanksgiving Celebration!atGeorgetown University

Healy Family Student Center 3700 O Street Northwest, Washington, DC 20057

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Thanks to my good friend Professor Lindsay Harris of the David A. Clarke School of Law at UDC for forwarding this.

I am thankful for dedicated lawyers like Lindsay and her colleagues who are inspiring and leading the resistance to this Administration’s “War on Due Process & Asylum Seekers.” As Jeff Sessions’s recent unprovoked and false attack on asylum seekers shows, never has support for the rights of asylum seekers and refugees and what they do for our country been more important. Fight the false narratives with truth and action by supporting groups like ASAP!

PWS

10-30-17

9TH CIR: BIA BOBBLES ROUTINE CREDIBILITY DETERMINATION – FAILS TO APPLY “TOTALITY OF CIRCUMSTANCES” — HUINAN LIN v. SESSIONS

9TH CIR Lin v. Sessions, 9th, Credibility

Huinan Lin v. Sessions, 9th Cir., 01-26-17, unpublished

PANEL: SCHROEDER, D.W. NELSON, and McKEOWN, Circuit Judges.

OPINION: PER CURIAM

KEY QUOTE:

“Finally, the BIA’s adverse credibility determination was not supported by substantial evidence because the BIA, in adopting the Immigration Judge’s (“IJ”) rationale, used omissions and discrepancies in Cao’s asylum application and testimony in his own immigration proceedings to find Lin not credible. See Bao v. Gonzalez, 460 F.3d 426, 431–32 (2d Cir. 2006) (finding that there was no basis for assuming Bao’s account was fabricated and her husband Zheng’s was the correct account of facts). The IJ found that nothing in Lin’s demeanor detracted from her credibility, yet rejected all of Lin’s explanations, even when she stood by her own version of events. We conclude that the overall reliance on Cao’s asylum application and prior testimony was arbitrary.

As Lin argues, the totality of the circumstances compel that she should be deemed credible. Because neither the BIA nor the IJ made an adverse credibility

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finding against Lin’s witness, Xiao Qin Lin (“Qin Lin”), we treat her factual allegations as true. See Aguilar-Ramos v. Holder, 594 F.3d 701, 704 (9th Cir. 2010). Qin Lin testified that she knew Lin was involuntarily taken by officials to have the abortion performed. Qin Lin stated that she took care of Lin two days after the abortion while she was crying, pale, and weak. See Shrestha v. Holder, 590 F.3d 1034, 1040–41 (9th Cir. 2010) (stating that the IJ should not ignore evidence that corroborates the alien’s claim). The 1999 Country Conditions Report notes that forced abortions and sterilizations occurred despite China’s official policy. Zhu v. Gonzales, 493 F.3d 588, 598 (5th Cir. 2007). Further, as part of the evidence in her case, Lin provided documentation from Jiangjing Town Hospital showing that she had an abortion on December 27, 2000. Lin also provided a notice addressed to her to report for IUD and pregnancy checks from the Cangxi Village Committee. The notice stated that if she did not report to the Family Planning Office, she “will be punished pursuant to relevant Family Planning Regulations.” A note from Dr. Gwendolyn P. Chung and Dr. Diana Y. Huang in Hawaii showed that Respondent’s second IUD was removed on September 15, 2008. The Government did not object to the submission of these copies and there was nothing in the record to “support a finding that the documents [were] not credible.” See Wang v. Ashcroft, 341 F.3d 1015, 1021 (9th Cir. 2003) (finding

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documentary support credible where “there was no opposition to the introduction or challenge to the authenticity of these documents by the INS,” even where the IJ found the documents unbelievable). Because the documentation and Qin Lin’s testimony are credible, they corroborate her past persecution claim, i.e., that she had a forced abortion and multiple IUD insertions. See Shrestha, 590 F.3d at 1040–41.

After a reversal of an adverse credibility determination, “[w]e must now decide whether we determine eligibility for asylum and withholding of removal or whether we remand for a determination by the BIA.” Wang, 341 F.3d at 1023. As set forth above, this Court finds credible Lin’s claim that she was forced to abort her pregnancy. See He v. Ashcroft, 328 F.3d 593, 604 (9th Cir. 2003). As a victim of forced abortion, Lin is therefore statutorily eligible for asylum and “entitled to withholding of removal as a matter of law.” Tang, 489 F.3d. at 992. Based on the totality of circumstances, there is no “reasonable prospect from the administrative record that there may be additional reasons upon which the IJ or BIA could rely” to find her claim not credible. Soto-Olarte v. Holder, 555 F.3d 1089, 1094-95 (9th Cir. 2009).

In sum, we grant the petition in part and hold that Lin is entitled to withholding of removal as a matter of law. In addition, since Lin is statutorily

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eligible for asylum, we remand to the BIA so that the Attorney General may exercise its discretion in granting asylum. See 8 U.S.C. § 1158(b)(1); Tang, 489 F.3d. at 992. We deny the petition in part as to the due process violation claim and challenge to the IJ’s finding of fear of future persecution.”

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You can read the full opinion at the link. Unfortunately, as with many Circuit Court opinions these days, it is “unpublished.” But, it is very instructive.

Yes, as a former BIA Chair and Appellate Judge, I “get it” that the BIA has lots of cases and nobody’s perfect. Certainly, I made my share of mistakes in my career. But, as I have noted before, these are hardly “major questions of law” on which divergence of opinion between the BIA and the Circuit Courts is understandable.

No, they are “failures of mechanics” — failure to correctly apply the everyday rules that Immigration Judges are supposed to be following in Immigration Courts across the country. And, although the legal issues might not be profound, the effects of such mistakes have a profound adverse effect on individuals’ lives.

This respondent was entitled to mandatory protection that the BIA was perfectly ready to ignore had the respondent not had the good fortune to have a persistent attorney to help her perfect an appeal to the Ninth Circuit. Many respondents in this system, however, do not have the good fortune to be so competently represented at their trial level and have no chance of winning an appeal without attorney assistance.

All of this points to the logical conclusion that the U.S. Immigration Courts, at both the trial and appellate levels are already running at “warp speed” where serious mistakes in the application of routine rules and precedents are all too common. To suggest, as Jeff “Gonzo Apocalyto” Sessions has, that the solution is to make the system go even faster, impose “production quotas,” and restrict the already limited rights of the individuals seeking justice from this system is totally absurd! Yet, he’s getting aways with it, at least so far.

We need an independent Article I U.S. Immigration Court where quality, fairness, Due Process, and “getting it right” are the driving considerations. Until we get such a court, we will be falling short of our Constitutional obligation to provide fair and impartial decisions to those coming before the U.S. immigration system.

PWS

10-29-17